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United Kingdom Upper Tribunal (Lands Chamber)
You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Lands Chamber) >> Johnston & Ors v TAG Farnborough Airport Ltd [2015] UKUT 534 (LC) (15 October 2015)
URL: http://www.bailii.org/uk/cases/UKUT/LC/2015/534.html
Cite as: [2015] UKUT 534 (LC)
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [201.] UKUT 0534 (LC)
Case Numbers: LCA/24/2010,
LCA/102/2013 & others
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION – Land Compensation Act 1973 Part I – aerodrome – preliminary issues – runway or apron alterations – relevant date – estoppel – limitation - validity of claim notices – occupation by government department - whether alterations pursuant to a single planning permission but separated by five years a single “scheme” – Johnston references dismissed – Dandy references proceed on limited grounds
BETWEEN:
HAMISH G JOHNSTON & OTHERS
PHILIP JOHN DANDY & OTHERS Claimants
and
TAG FARNBOROUGH AIRPORT LIMITED Respondent
Re: Tanglewood
175 Sycamore Road,
Farnborough
Hampshire GU14 6RF
and other properties
Before: Martin Rodger QC, Deputy President
Sitting at: Royal Courts of Justice, Strand, London WC2A 2LL
on
6-10, 13-16, 20-24, 27-28, and 30-31 July 2015
Richard Wald and James Burton, instructed by Hugh James, solicitors, for the represented claimants
Peter Village QC and Andrew Tabachnik, instructed by Herbert Smith Freehills, solicitors, for the respondents
© CROWN COPYRIGHT 2015
The following cases are referred to in this decision:
Brunt v Southampton International Airport Ltd [2005] EWCA Civ 93
Davies v Mid Glamorgan County Council (1979) 38 P & CR 727
Donaldson v Hereford and Worcester County Council (1998) 76 P & CR 93
Fennessy v London City Airport Ltd [1995] 2 EGLR 167
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Natt v Osman [2014] EWCA Civ 1520
Price v Caerphilly County Borough Council [2005] 1 EGLR 157
R v Secretary of State for the Environment ex p. Plymouth City Airport Ltd (2001) 82 P & CR 20
Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Ltd [1972] AC 741
Table of contents Paragraph
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Introduction |
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The proceedings |
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Representation |
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Witnesses |
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Compensation for depreciation to the value of land caused by the use of runway or apron alterations |
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The facts in outline |
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The issues |
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Johnston issue 4: Are the works on which the claims are based “runway or apron alterations” within the meaning of section 9(6) of the Act? |
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Johnston issues 5(a) and 1: What was the “relevant date” for the purpose of the Johnston claims, and were the notices of reference served too late? |
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Johnston issue 5(b): if the relevant date was earlier than 1 January 2003, is TAG nonetheless estopped from denying that 1 January 2003 was the relevant date? |
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Johnston issue 3: Did the claimants serve valid notices of claim? |
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Johnston issue 2: Are the claims barred by section 84(1) because at the relevant date the Aerodrome was in the occupation of a government department? |
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Conclusion on Johnston references |
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The application to strike out and notices of withdrawal |
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Dandy issue 4: Are the works on which the claims are based (or any of them) “runway or apron alterations” within the meaning of section 9(6) of the Act? |
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Dandy issue 5: Can the works carried out in 2001 and 2002, and the works carried out between 2008 and 2012, be regarded as a single set of runway or apron alterations? |
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Dandy issue 6: What was the “relevant date” (or “relevant dates”) for the purpose of the Dandy claims? |
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Dandy issue 1: Are the claims (or any part of them) barred by limitation? |
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Dandy issue 2: Are any parts of the claims barred by section 84(1) of the Act? |
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Dandy issue 3: Did the Claimants (or any of them) have “qualifying interests” at the material times entitling them to claim compensation under the Act? |
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Conclusion on Dandy references |
Introduction
1. Farnborough Aerodrome in Hampshire can fairly claim to be the birth-place of British aviation and the cradle of the Royal Air Force. On 16 October 1908 the American showman Samuel Cody completed the UK’s first powered flight there, covering 1,600 feet in his “Army Aeroplane no. 1”. In 1911 the Air Battalion, Royal Engineers was formed at Farnborough, the predecessor of the Royal Flying Corps and thus of the RAF. Airships and balloons for military use were manufactured there and in 1913 the black sheds (now Grade 2A listed buildings) were built as hangars for aircraft evaluation. Under the ownership and control of the Ministry of Defence the Aerodrome was successively the home of the Royal Aircraft Factory from 1911 to 1918, a vital centre for aircraft research and test pilot training during and after the Second World War, and the base of the Royal Aircraft Establishment until 1994. At its peak in the 1960s, when the Empire Test Pilot School was based at the Aerodrome, more than 38,000 military air transport movements took place each year from three operational runways and more than 10,000 people worked at the site. Since 1948 the Aerodrome has been the home of the biennial Farnborough Airshow, now the largest trade exhibition of any kind in the world, attracting crowds of over 250,000.
2. Part I of the Land Compensation Act 1973 gives a right to compensation where the value of an interest in land has been depreciated by physical factors caused by the use of certain public works, including any aerodrome. The physical factors relevant for this purpose include noise, vibration and artificial lighting. The measure of compensation is the depreciation in the value of land caused by those factors.
3. These references concern two groups of claims under Part I of the 1973 Act arising out of work undertaken by the respondent, TAG Farnborough Airport Ltd, between October 2000 and July 2012 to adapt the Aerodrome from its former military use to fit it for modern civilian aviation. The Aerodrome is now operated by TAG as the UK’s only dedicated business aviation airport. It is common ground that TAG would be the responsible authority for the purpose of any claims in relation to works at the Aerodrome falling within Part I of the 1973 Act.
4. The Aerodrome lies 1.6km south of Farnborough town centre. The claimants are residents of Farnborough and surrounding villages whose homes are in the vicinity of the Aerodrome and its flight path and who claim to have been adversely affected by the changes which have taken place since 2000. This decision is not concerned with whether the claimants’ peaceful enjoyment of their homes has been disturbed and the value of their property consequently devalued, but only with whether they have a right to bring claims under Part I of the 1973 Act; I should nonetheless record at the outset that the merits of the claimants’ complaints are disputed by TAG.
The proceedings
5. The original references for compensation were commenced in December 2009 by the owners of 264 homes in the vicinity of the Aerodrome; those references have been referred to as the Johnston proceedings and focus on works undertaken at the Aerodrome before 1 January 2003. A second group of references by the owners of five Farnborough properties was commenced in July 2013; these are referred to as the Dandy proceedings and relate to works carried out at the Aerodrome up to July 2012. The claimants in the Dandy proceedings are also claimants in the Johnston proceedings.
6. There were originally 264 separate claims in the Johnston proceedings of which 37 have subsequently been withdrawn, including a number which were withdrawn during or shortly before the hearing, leaving 227.
7. A claim for compensation following alterations to an aerodrome may not be made under Part I of the 1973 Act earlier than 12 months from the “relevant date” i.e. the date on which the public works were first used after completion of the alterations giving rise to the claim (sections 1(9), 3(2) and 9(2), 1973 Act). The effect of these provisions is to add a further year to the 6 year limitation period under section 9 of the Limitation Act 1980 which runs from the first claim date (section 19(2A), 1973 Act). The only alterations which may give rise to a claim in the case of an aerodrome are “runway or apron alterations”, expressions defined in section 9(6) of the 1973 Act as including both the extension or strengthening of an existing runway, and “a substantial addition to, or alteration of, a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft”.
8. The potential value of the claims in the Johnston proceedings is said to exceed £14m, based on the alleged diminution in value of the claimants’ homes as a result of the use of the Aerodrome in its altered form after alterations completed before 1 January 2003. In aggregate the claims of the five Dandy claimants are said to exceed £340,000. As the Dandy proceedings are in the nature of a test case, and as the limitation period for the later works has not expired, the potential exists for further claims to be made by other residents of Farnborough and surrounding areas including those who are already Johnston claimants. The estimated values of the claims in both groups of references are challenged by TAG, which denies that the alterations to the Aerodrome have injuriously affected the claimants’ property at all; on the contrary TAG suggests that the claimants are better off as a result of the improvements it has carried out.
9. TAG resists the claims in the Johnston proceedings on five separate grounds. These are:
(a) Limitation: it is said that alterations were completed and first used in July and October 2002, and that the references (which were commenced in December 2009) were therefore made too late.
(b) Claim notices: it is said that no valid claim notices have been served.
(c) Crown immunity: it is said that when the alterations were carried out the Aerodrome was still in the occupation of the MoD, a government department, and that TAG is entitled to the benefit of a specific exemption from compensation provided by section 84(1) of the 1973 Act.
(d) No relevant alterations: it is said that the alterations carried out to the Aerodrome were not “runway or apron alterations” as defined in section 9 and that the entitlement to compensation under Part I of the 1973 Act was therefore not engaged.
(e) Loss: it is said that no loss has been caused to the claimants.
10. In response to the assertion that the claims were brought out of time, the claimants rely on a formal statement made by TAG’s Planning and Development Director in February 2003, as a result of which TAG is said to be estopped from asserting that the relevant date for calculating limitation (the date of first use of the Aerodrome after completion of the runway or apron alterations) was earlier than 1 January 2003.
11. On 9 March 2011 the Tribunal ordered that five preliminary issues be tried in the Johnston proceedings; in substance these issues cover all of the grounds of defence, other than the contention that no loss has been suffered, and the estoppel issue.
12. It was originally intended that the trial of the preliminary issues would take place in October 2011, but the Johnston proceedings were subsequently stayed by the Tribunal to permit the claimants to make an application to the Secretary of State for a certificate under section 15(2) of the 1973 Act. If granted such a certificate would have fixed the relevant date and confirmed whether runway or apron alterations had taken place, rendering at least two of the preliminary issues redundant. At the urging of TAG the Secretary of State declined to make such a determination. Proceedings for judicial review of that refusal were subsequently commenced by the claimants, but on 23 April 2013 those proceedings were withdrawn on the basis that the substantive issues would be determined by the Tribunal.
13. By the time the Johnston proceedings returned to the Tribunal, the Dandy proceedings had been commenced. The essence of the claimants’ contention in the Dandy proceedings is that all of the work to the runway and aprons carried out at the Aerodrome between October 2000 and 2012 comprised a single set of runway or apron alterations which should be considered as a whole for the purpose of bringing claims under the 1973 Act. TAG resists the claims for compensation in the Dandy proceedings on the following grounds:
(a) Limitation: to the extent that the alterations relied on comprise the works completed in 2002, it is said that these must be disregarded as having been completed and first used more than seven years before the commencement of the references.
(b) Crown immunity: to the extent that the alterations relied on were carried out while the Aerodrome remained in the occupation of the MoD, it is said that these must also be disregarded.
(c) Claim notices and qualifying interests: it is said that valid notices of claim have not been served and that some of the Dandy claimants had disposed of their properties before the relevant date.
(d) No relevant alterations: it is said that the alterations relied on were not “runway or apron alterations” as defined in section 9 of the 1973 Act.
(e) Loss: it is said that no loss has been caused to the claimants.
14. At a case management hearing on 24 March 2014 further directions for the trial of the preliminary issues in Johnston were given and agreed preliminary issues were also ordered to be tried in the Dandy proceedings. I will refer to the agreed formulation of the individual issues later in this decision. The issues in both proceedings overlap, although the Dandy proceedings cover a much longer period. Nonetheless, the parties agreed that a single trial of the preliminary issues in both proceedings was appropriate.
Representation
15. Of the 227 outstanding claims in the Johnston proceedings 206 of the claimants (or joint claimants where properties are owned by couples) are represented by Hugh James, solicitors, while the remaining 21 claimants are currently unrepresented.
16. In the Dandy proceedings all of the claimants are represented by Hugh James, solicitors. At the hearing the Dandy claimants and the Johnston claimants for whom Hugh James, solicitors, act were represented by Mr Richard Wald and Mr James Burton. None of the unrepresented claimants in the Johnston proceedings attended the hearing.
17. TAG is represented by Herbert Smith Freehills, solicitors, and its case was presented at the hearing by Mr Peter Village QC and Mr Andrew Tabachnik.
18. These references have become a very substantial piece of litigation which was at serious risk of drowning in peripheral documents. I am grateful to all of those involved in the preparation and presentation of the references for their assistance in enabling the Tribunal to assimilate relevant material and focus on the issues of significance.
Witnesses
19. The main factual evidence on behalf of the claimants was given by Mr Geoffrey Marks OBE, the Chairman of the Farnborough Aerodrome Residents’ Association (FARA), a post which he has held since 2002. Evidence was also given by Mr Christopher Hunt MRICS, of Hunt Scott Chartered Surveyors, who had formerly acted on behalf of the claimants and who submitted the Johnston references to the Tribunal on their behalf in December 2009. I take the opportunity to record at this early stage that in his closing submissions an attack was made by Mr Village QC on the credibility and integrity of both of the claimants’ main factual witnesses. In my judgment that attack was entirely unsubstantiated. I found Mr Marks to be a conspicuously honest witness, who since 1997 has devoted an enormous amount of time and energy to the service of his community and its relations with the Aerodrome. The fact that he did not recall in detail events occurring 13 years before he made his witness statement, or that documents which he had not seen for many years provided a more reliable account, did nothing to undermine the favourable impression he gave. From the witness box he expressed goodwill towards TAG, but unlike Mr Village, who denounced Mr Marks’ generous observations towards his client as “the height of disingenuousness”, I had no doubt that they were sincere; they reflected Mr Marks’ obvious enthusiasm for aviation and his long professional career with the MoD in that field, and they confirmed my assessment of him as an open minded and tolerant individual. I see nothing inconsistent in his goodwill towards TAG and his efforts to secure for those most affected by its operations at Farnborough such compensation as they may be entitled to under the statute. I found the criticism made of Mr Hunt to be similarly insubstantial, in particular an allegation that he allowed himself to come under a professional conflict of interest which I was satisfied was clearly not the case.
20. A representative sample of claimants also gave evidence going largely to the estoppel issue, but touching also on the impact which the changes at the Aerodrome have had on their enjoyment of their homes. At this stage they can broadly be classified into two groups: those whose homes are (or were at the relevant date) in Church Crookham and Ewshot, under the flight path to the west of the Aerodrome runway; and those who live or lived in Farnborough itself, under the flight path to the east of the runway, in the area known as Farnborough Park. In the former group I heard evidence from Mr Gerard Goodeve-Ballard, Mr James Radley, Mr David Preston and Mr Trevor Dragwidge; in the latter group evidence was given by Mr Brian Adams, Mr Geoffrey Cull, Mr Philip Dandy, Mr Charles Milne, Mr Glenn Morrison and Dr Richard Rycroft, as well as by Mr Marks. A witness statement was also tendered by Mrs Susan Jenkins, which was not challenged on behalf of TAG so that it was unnecessary for her to give oral evidence.
21. The evidence of three witnesses of fact was called on behalf of TAG. Ms Ann Bartaby is a director of a planning consultancy, Terence O’Rourke Ltd, in which capacity she was TAG’s planning consultant from 1997 before coming in-house as TAG’s Planning and Development Director from October 2000 to May 2003, and its Director of Operations from May 2003 to May 2005. Mr Brandon O’Reilly joined TAG as its CEO in January 2007 and remains in that post. Mr Leslie Hunt, TAG’s final factual witness was, until his retirement in 2012, an estate surveyor with the MoD, and had been responsible for estate management matters at the Aerodrome and the larger MoD estate at Farnborough from 1996 onwards.
22. Expert evidence in the field of airport management and operations was given for the claimants by Mr Peter Forbes FRAeS FCILT, the managing director of Alan Stratford and Associates Ltd, and for TAG by Mr David Titterington MRTPI, the managing director of Airport Planning and Development (APD) Ltd. Expert evidence in relation to planning matters was given for the claimants by Mr Robert Matthews MRTPI, a director of Vantage Planning Ltd, and for TAG by Mr John Rhodes MRICS, a director of Quod, a consultancy specialising in aviation related planning matters.
23. All four experts were extremely well qualified in their respective fields and they were able helpfully to reach agreement on many matters of relevance. The scope of their disagreement largely concerned issues which fell outside their expertise but on which they had nevertheless been asked to comment. In particular they commented extensively on the law and on the motivation for business decisions in which they had not been involved, but about which they had seen reports and minutes. Not all were equally inclined to range widely beyond the legitimate boundaries of expert evidence, with the evidence of Mr Rhodes being least affected. The willingness of the experts to debate the law and to reach trenchant conclusions on the meaning and effect of the statutory language (invariably supportive of the case of the party instructing them) was surprising. It had the effect of increasing costs and lengthening the hearing (the expert evidence took four days of hearing time); more importantly, it cast doubt on their objectivity and independence and diminished the weight which I felt I could confidently give to the opinions they expressed on matters within their expertise. It was therefore unhelpful and counter-productive. I have no doubt that the experts were trying to assist the Tribunal and were responding to the requests of the parties in covering the range of matters on which they commented, but their evidence would have been more useful if they had restricted themselves to issues within the scope of their very considerable expertise.
Compensation for depreciation caused by the use of public works comprising an aerodrome
24. Part I of the 1973 Act conferred a new right to compensation for depreciation in the value of interests in land by physical factors caused by the use of highways, aerodromes and other “public works”. Without that right no remedy would be available for such depreciation: in the case of aerodromes section 77(2) of the Civil Aviation Act 1982 confers immunity from civil actions for nuisance arising out of the operation of an aerodrome with the benefit of an air navigation order.
25. Section 1(1) confers the right in the following terms:
1 Right to compensationE+W
(1) Where the value of an interest in land is depreciated by physical factors caused by the use of public works, then, if—
(a) the interest qualifies for compensation under this Part of this Act; and
(b) the person entitled to the interest makes a claim after the time provided by and otherwise in accordance with this Part of this Act,
compensation for that depreciation shall, subject to the provisions of this Part of this Act, be payable by the responsible authority to the person making the claim (hereafter referred to as “the claimant”).
26. The physical factors referred to are listed in subsection (2) and include noise, vibration, artificial lighting and the discharge onto the land of any solid or liquid substance. Under subsection (3) the expression “public works” includes an aerodrome; (by section 87(1) of the 1973 Act and section 105(1) of the Civil Aviation Act 1982 an “aerodrome” is “any area of land or water designed, equipped, set apart or commonly used for affording facilities for the landing and departure of aircraft …”). Subsection (5) provides that physical factors caused by an aircraft arriving at or departing from an aerodrome are to be treated as caused by the use of the aerodrome whether or not the aircraft is within the boundaries of the aerodrome.
27. Section 3 of the 1973 Act concerns the making of claims. Subsection (1) requires a claim form to be submitted; I will consider the prescribed content of such a claim form in greater detail later, but generally it is required to give relevant particulars of the nature and basis of the claim. Subsection (2) prevents a claim from being made earlier than the day following the first anniversary of the relevant date, referred to as “the first claim date”. Section 4(2) limits claims in general to the effect of the use of the public works in the state in which they are on the first claim date, together with any intensification of that use that might reasonably be expected of the works in that state.
28. Section 1(9)(b) defines “the relevant date” in relation to a claim in respect of an aerodrome as the date on which the public works (i.e. the aerodrome) were first used after completion. The present case is concerned not with the completion of new public works but rather with alterations carried out to existing public works.
29. Section 9 applies to alterations to public works. Subsection (2) provides that, where a claim relates to depreciation caused by such alterations, the relevant date is the date when the public works were first used after completion of the alterations. Subsections (3) and (6) then confine the alterations which may give rise to a claim in relation to an aerodrome to “runway or apron alterations”:
(3) Subsection (2) above shall not by virtue of any alterations to an aerodrome apply to a claim in respect of physical factors caused by aircraft unless the alterations are runway or apron alterations.
(6) In this section ‘runway or apron alterations’ means –
(a) the construction of a new runway, the major realignment of an existing runway or the extension or strengthening of an existing runway; or
(b) a substantial addition to, or alteration of, a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft.
30. The effect of these provisions is to limit claims in respect of established aerodromes to depreciation caused by runway or apron alterations as defined. The 1973 Act contains no definition of the expressions “runway” or “apron”, both of which have been contentious in these proceedings.
31. Assistance in the application of section 9(6) is provided by the decision of the Court of Appeal in Brunt v Southampton International Airport Ltd [2005] EWCA Civ 93. In Brunt it was anticipated that alterations to the taxiways and aprons at Southampton Airport would facilitate a substantial increase in the use of the airport by larger aircraft, although it was not expected that total aircraft movements would increase because the number of smaller aircraft using the airport was intended to fall. The residents of houses beneath the flight path sought compensation under the 1973 Act and the question for the Court of Appeal, on an appeal from the President of the Lands Tribunal, was whether the requirement of section 9(6)(b) that the “purpose or main purpose [of the alterations] is the provision of facilities for a greater number of aircraft” was satisfied in those circumstances.
32. The leading judgment in Brunt was given by Neuberger LJ (with whom Tuckey LJ agreed, Ward LJ dissenting); at paragraph 26 he recorded his initial reaction to section 9(6)(b):
33. Neuberger LJ then analysed the thinking behind the statutory provisions, at paragraphs 34 to 36:
“34. As I see it, the thinking behind s. 9(3) and (6) was along the following lines. First, there was to be no compensation for householders living near aerodromes in respect of nuisance arising from use of the aerodromes in the state in which they were in 1973. As a result, for instance, intensification of such use (either in terms of number of aircraft or owing to changes in types of aircraft) which involved no physical alteration to the aerodrome, would not give rise to compensation …. Secondly, the basic capacity, in terms of types and numbers of aircraft which can be accommodated, and even the likely flight paths of aircraft taking off and landing, at any aerodrome is governed by the length, strength, width and location of the runway or runways. Accordingly, any runway alterations will give rise to a claim for compensation in principle, because they would be likely to result in increased nuisance to at least some people living near the airport: hence s. 9(6)(a).
34. In Brunt the residents of houses beneath the flight path claimed compensation on the grounds that an increase in the types of aircraft using the airport was sufficient to satisfy the “greater number” requirement of section 9(6)(b). Acknowledging that the subsection was “inevitably something of a blunt instrument which will produce what may seem to be unfair, or even inconsistent results” (paragraph 41) Neuberger LJ concluded that, on a natural reading, the subsection was concerned with “throughput potential” judged by reference to the total number of aircraft of all types.
35. The residents’ alternative argument was that the operator’s “main purpose” in carrying out the improvements at Southampton was to provide facilities for a greater number of larger aircraft and that the knock on consequence of reducing the aggregate total number was irrelevant because it was no part of that purpose. Neuberger LJ also rejected this contention, explaining his reasons at paragraphs 45 and 46:
At paragraph 51 the following further explanation was given:
It followed that whether one looked at the subjective expectation of the airport operator in making the alterations, or at the likely objectively judged consequences of the works, there would be a smaller rather than a larger number of aircraft using the facilities at the airport and the claims for compensation therefore failed.
36. It is finally necessary to refer to section 84 which is concerned with the application of the 1973 Act to the Crown. It provides:
(1) Part I of this Act does not apply to any aerodrome in the occupation of a government department but, subject to that, references in that Part and in Part II of this Act to public works and responsible authorities include references to any works or authority which, apart from any Crown exemption, would be public works or a responsible authority.
The facts in outline
37. It will be necessary for me to resolve certain disputed factual issues in this decision but there are very few conflicts of evidence and, for the most part, the relevant history is not in doubt.
Civil aviation at Farnborough before TAG
38. In 1985 a government White Paper on Airport Policy recommended the establishment of a civil aviation facility at Farnborough to meet the demand for commercial air transport in the South East of England. A new business aviation facility opened at the Aerodrome in October 1989. It operated at first from a small area on the south side of the main runway referred to as the “Civil Enclave”, which was leased from the MoD by the original operator, Carroll Aircraft Corporation, for a term intended to expire in 2000.
39. The Civil Enclave was arranged around an irregularly shaped and rather cramped apron referred to as South Apron One. A single hangar of 2,600 m2 and some modest huts and temporary buildings initially provided facilities for ground crew, passengers and businesses concerned with the servicing of civilian flights. The Civil Enclave was separated from the Aerodrome by a fence with two gates wide enough for aircraft to enter from the taxiways. Additional ad hoc apron space was available for civil aircraft on the Aerodrome itself, in an area referred to as South Apron Two immediately outside the Enclave. No part of the runway or operational areas (including South Apron Two) was included in the lease granted by the MoD to Carroll. Although some of the original temporary buildings were later replaced by TAG the space and facilities available at the Civil Enclave did not increase significantly between 1985 and 2002.
40. All civilian flying from the Civil Enclave was regulated by a licence issued by the MoD. The licence was originally due to expire in 2000, but was extended in 1999 to a terminal date of 31 December 2002. The MoD licence restricted air transport movements to 25,000 a year and limited operating hours, passenger numbers, and the number of civil aircraft permitted to be based at the Aerodrome.
41. The Civil Enclave seems to have had only limited success; it was constrained by the terms of the lease and the MoD licence and by modest facilities, poorly located within the Aerodrome. Growth was relatively slow and by 1995 the volume of corporate and private business traffic through the Civil Enclave annually had reached about 7,600 air traffic movements or ATMs (each a single take-off or landing), well below the ceiling set by the MoD licence. By that time the original operator was in receivership. Its business at Farnborough was sold together with the lease of the Civil Enclave to British Aerospace Plc (later re-named BAE Systems) after which the enterprise was rebranded as Farnborough Business Aviation Ltd. By 1998 business aviation flying had increased to 12,065 ATMs.
42. The MoD’s use of the Aerodrome had been in decline since the 1970s; several of the claimants, including Mr Milne, who worked at the Royal Aircraft Establishment at Farnborough for most of the period from 1946 to 1982, described the declining frequency of military flying which in any event was generally restricted to weekdays and within office hours. That evidence is consistent with the account given in a discussion paper on the future of the Aerodrome produced by Rushmoor Borough Council in July 1995 which recorded that the level of military flying had peaked at 38,000 ATMs per annum in the 1960s but had declined to fewer than 7,000 by 1994 and to only about 1,400 by 1995.
43. In May 1991 the MoD announced that, following a defence review, it intended to transfer the Royal Aerospace Establishment to Boscombe Down (which it did in March 1994) and that the Aerodrome would then become surplus to defence requirements. In addition to the Aerodrome itself the MoD owned the adjoining factory site, the RAF officers’ mess, the Queensgate site, the Civil Enclave and land to the west of the Aerodrome used as a military training area, all of which (with the possible exception of the training area) were to be disposed of.
44. Perhaps surprisingly, the Aerodrome is not naturally suited to modern aviation, especially for larger aircraft, being surrounded by low hills and heavily built up along its eastern boundary over which most flights will travel when landing. For a time there was uncertainty over its future and an increasing prospect that the 310 hectare Aerodrome site might be developed for housing or other non-aviation uses, but in December 1994 the government made public its wish to retain capacity for business aviation at Farnborough while at the same time ruling out the possibility of it becoming a major international airport. It was proposed to grant a lease of the Aerodrome itself (which is very much larger than the Civil Enclave) for use as a business airport and a marketing exercise to find an appropriate operator was undertaken in 1997. As a result of that exercise the MoD identified TAG Aviation, a leading business aviation operator, which it came to consider as having the best chance of obtaining planning permission and a Civil Aviation Authority aerodrome licence, neither of which had been required while the Aerodrome was operated by the MoD but which would be essential after MoD regulation ceased at the end of 2002.
The Local Plan Review and TAG’s October 2000 outline planning permission
45. On 17 February 1998 the MoD and TAG entered into an agreement for the grant of a lease of some 235 hectares of land forming the greater part of the Aerodrome for a term of 25 years with an option to extend to 99 years (“the Agreement for Lease”). The grant of the lease itself was conditional on TAG obtaining both planning permission and a CAA aerodrome licence to enable it to continue to operate the Aerodrome after MoD licensing ceased. The MoD contracted to cooperate with TAG to enable it to obtain the necessary consents. In anticipation of these new arrangements being implemented, TAG took an underlease of the Civil Enclave from BAE on 6 October 1999 for a term expiring on 31 December 2000 (later extended by agreement until 31 December 2003). I will consider the content of these documents a little later. To meet its short term needs TAG carried out improvements to the Civil Enclave, including the provision of a better terminal building.
46. The establishment of the Civil Enclave had been intended to meet a perceived need for additional facilities to accommodate a growing demand for business aviation. The 1985 Aviation Policy White Paper had recommended the development of the Aerodrome and anticipated that it should be able to handle 25,000 business ATMs per year. This figure came to be reflected in the MoD licence and in the Civil Enclave lease and underlease, although it was not repeated in the draft lease attached to the Agreement for Lease; the expectation appears to have been that once the lease was granted the capacity of the Aerodrome would be regulated by planning permission.
47. TAG intended that there should be a significant increase in civil traffic, above that which had previously been handled by the Civil Enclave, to enable the Aerodrome to operate successfully as a business airport. It wished to offer a unique service – Europe’s first dedicated business airport – for which it foresaw considerable unmet demand. The supporting statement which accompanied TAG’s application for planning permission in September 1999, entitled “Farnborough Aerodrome: Bringing Business Aviation to Britain”, emphasised the novelty of its proposition and drew attention to the findings of four recent reports which justified its business model. These had forecast that the demand for business aviation in the South East would increase by up to 265% by 2030 and that the imbalance between demand and capacity for business aviation would increase yet further. Farnborough had been identified as key to meeting that demand. TAG expected to achieve 25,000 ATMs by 2007/8 and proposed that that figure be set as an initial limit “subject to appropriate revision”.
48. In 1993 there had been public consultation over an increase in the permitted number of commercial flights from the Aerodrome from 4,000 a year to 40,000 which met strong local resistance. Rushmoor Borough Council, within whose boundaries the Aerodrome is situated, was faithful to the government’s policy of retaining business aviation at Farnborough when it began to review its Local Plan in 1996. The draft Local Plan nonetheless sought an annual limit of 20,000 ATMs, which TAG resisted when it engaged with the review process after February 1998. Although TAG had initially been advised by Ms Bartaby that it would be virtually impossible to obtain permission for more than 25,000 movements a year, it eventually succeeded in achieving a planning permission which restricted ATMs to a maximum of 28,000 a year. TAG first made it clear to the MoD, and in the evidence of its representative Dr Youssef to the 1998 Local Plan Review inquiry, that its own preference was for there to be no ATM limit and for the environmental interests of residents to be protected by a “noise budget” restricting the level of disturbance by reference to objectively verifiable limits rather than by controlling the number of aircraft. It was prepared to be flexible over the principle of an ATM limit but nonetheless emphasised that it would not take the proposed lease of the Aerodrome unless business aviation movements were permitted to rise to 28,000 a year with a review once they had reached 25,000. In June 1999 TAG’s insistence on any limit being no less than 28,000 ATMs was accepted by the inspector in conjunction with a noise budget and this dual approach was reflected in the Local Plan adopted by Rushmoor Borough Council on 4 August 2000. By that time the number of business aircraft movements from the Civil Enclave had risen to more than 13,000 a year.
49. The Local Plan Review also required that any development of civil aviation facilities be based on the northern side of the Aerodrome, that is, on the opposite side of the main runway from the Civil Enclave. This northern focus was favoured both by the planners and by TAG which preferred to develop its modern facilities on the northern side of the Aerodrome adjacent to the main taxiway formerly referred to as Diamond Way. This preference was for a list of reasons explained by Ms Bartaby in her evidence to the inquiry: it was more remote from residential areas, more convenient for access to the highway network, and offered greater scope for expansion, as well as enabling the existing Civil Enclave to continue in operation while new terminal, apron and hangar facilities were constructed.
50. Both the Local Plan Review and the application for planning permission subsequently made by TAG attracted opposition from those who, like the claimants, lived close to the Aerodrome. Their concerns were typically over extended operating hours, an increase in the number of flights, and the effect of the resulting noise on their enjoyment of their homes. A number were concerned that the proposals would have an adverse effect on property values and some, like Mr Adams, felt that they would be likely to move away from the flight path.
51. TAG’s own application for planning permission to develop the Aerodrome as a dedicated business aviation facility was submitted in September 1999 and granted on 11 October 2000. The development permitted was described in the planning permission as:
“Erection of new buildings and associated structures, installation of aerodrome and ancillary infrastructure works, formation of new vehicular access, and use of aerodrome for business aviation and related activities”
The permission was in outline only and required an application for approval of reserved matters to be made within 8 years (which, at TAG’s request, was longer than the 3 year period ordinarily allowed under section 92, Town and Country Planning Act 1990). The permission was subject to a number of conditions. By condition 2 implementation was required to be commenced within 10 years or within 2 years of the approval of the last of the reserved matters. No more than 28,000 aircraft movements were permitted annually, with no more than 2,500 of these to be at weekends or bank holidays (condition 11). The development was restricted to a maximum floor space of 47,018 sq m including hangar space in the region of 37,162 sq m in new and existing hangars (condition 9). The reserved matters listed in condition 4 included the siting and design of all new buildings, the approval and implementation of enabling works to bring the Aerodrome up to the standard required by the CAA, phasing of the development, and the approval and implementation of the proposed runway configuration before any flying pursuant to the planning permission could commence.
52. In accordance with the approach taken by the Local Plan, the section 106 agreement entered into when the planning permission was granted provided for control of the environmental impact of the Aerodrome by the imposition of a noise contour based on a “budget” representing the noise generated by 20,000 aircraft movements of the varieties of civil aircraft using the Aerodrome in 1997. The amenity of surrounding residential properties was to be further protected by limiting the type and scale of air traffic movements. Bulk freight services, scheduled passenger services and package tour charter flights were all prohibited. No aircraft exceeding 50 tonnes maximum take off weight were permitted with the exception of up to 1,500 movements per annum by the Boeing Business Jet (or equivalents), the largest business aircraft then in use. Although these larger aircraft were intended to form a relatively small proportion of total traffic through the Aerodrome, and in practice account for only about 5% of air transport movements, the ability to provide facilities for the largest transatlantic business jets was seen by TAG as vital to its ambition to establish Europe’s premier business airport at Farnborough.
53. Having granted permission the Council published a leaflet explaining its decision. Amongst other matters it advised that the Aerodrome would continue to operate under the existing “military arrangements” until it had been brought up to the standard required by the CAA. Only when the CAA had granted a licence would the planning controls come into effect. The Council’s leaflet also informed its readers that TAG intended to ban the noisiest form of sub-sonic flights, by “Chapter 2” aircraft, with effect from 1 January 2001, 15 months earlier than an EU-wide ban was due to come into effect.
The master plan for development of the Aerodrome
54. The conditions to which the outline planning permission was subject required the development to be based on an illustrative master plan submitted in support of the application. New aviation buildings and facilities were to be located in the north of the Aerodrome, on the opposite side of the runway from the Civil Enclave which would eventually close. On completion the development as a whole was to have a maximum floor space of 47,016 sq m of which a little over 37,000 sq m was to be hangar space.
55. The first of three main phases of construction under the master plan comprised enabling works to ensure that the Aerodrome was brought up to the standard required by the CAA. The proposed phasing had been explained by Ms Bartaby in the statement which she had drafted to support the application for planning consent in September 1999. In paragraph 4.25 of that document she had written:
“Construction at the site is planned in three main phases, relating to the anticipated requirements and business growth at the site. The precise timing of each phase is not certain, but indicative periods are set out below. The phasing could be advanced in response to commercial demands.”
56. The proposed phasing was projected to commence in 2000 with the enabling works required to obtain the CAA aerodrome licence. These Phase 1 works included the construction of an air traffic control tower (the only new building included in Phase 1) together with a new access road, additional hard-standing for the Airshow, and other engineering works.
57. Phase 2 would comprise a new terminal building and the first new hangar, which would enable the relocation of the operations previously conducted from the Civil Enclave, together with additional hard-standing and apron space along Diamond Way adjoining these new buildings, all of which was projected to be undertaken between 2003 and 2005. Ms Bartaby confirmed in her oral evidence that Phases 1 and 2 were intended to replace the facilities of the Civil Enclave with larger modern facilities; she considered that the new North Apron was broadly equal in size to the South One and South Two aprons used in connection with the Civil Enclave but the new hangar was to be about 50% bigger than the hangar in the Enclave.
58. Phase 3 was to be in two parts. Phase 3A, which was projected to be undertaken between 2005 and 2007 would provide two further hangars along with additional aircraft parking space, while Phase 3B would add four more hangars and a new maintenance building between 2007 and 2009.
59. In practice the development of the Aerodrome has departed in significant respects both from the original master plan and from the indicative timing provided by Ms Bartaby in her 1999 planning statement. I will come to the detail of the work shortly but the most obvious change has been to the design of the hangars; rather than eight separate but smaller hangars with a combined area of 21,350 sq m, the Aerodrome has been provided with two much larger hangars of a distinctive wave-like design, each divided into three bays more readily capable of accommodating larger and heavier aircraft. These main hangars (Hangar One and Hangar Two) provide 21,600 sq m of hangar space, and have a total area of 36,000 sq m including two levels of ancillary office space between each of the bays. The bays themselves are each 80 metres wide and have doors tall enough to enable an aircraft with a 14 metre tail fin to enter. Two of the largest business jets can be accommodated in each bay or a mix of approximately seven medium and smaller aircraft of different sizes. Four smaller hangars or sheds with a combined area of 9,773 sq m house engineering and maintenance facilities (although not all of these buildings are new).
The approved phasing
60. Condition 5 of the 2000 outline planning permission required TAG to obtain the approval of the Council to its proposed phasing of the development before any development or flying pursuant to the permission could begin. The sole exception to this prohibition was in favour of the enabling works. Once the phasing had been approved the development was then required to proceed in accordance with the approved sequence.
61. In March 2001 TAG applied to discharge Condition 5. The phasing details described in TAG’s submission and subsequently approved provided for 5 phases.
Phase 1 comprised the enabling works to comply with the requirements of the CAA which were to commence in June 2001 and were expected to be completed by December 2002.
Phase 2 was the construction of the Air Traffic Control Tower, which was also essential to gain a CAA licence, and was to be completed by the summer of 2002. The tower itself was expected to become operational in December 2002, after fitting out and testing.
Phase 3 did not involve work but was the use of the Aerodrome for flying pursuant to the permission which was planned to commence after the grant of a CAA licence on 1 January 2003.
Phase 4 involved the construction of the terminal buildings and the first new hangar. Completion of the terminal was planned for January 2003, with the new hangar to be completed by December 2002.
Phase 5 was described in the application in the following terms:
“All additional new hangars will be constructed after the completion of phase 4. The precise timing will depend on market conditions and customer demand. It is anticipated that some 6,000 sq metres per annum will be completed. Reserved matters applications will be submitted at the appropriate time.”
The runway
62. In order to obtain a CAA aerodrome licence TAG had first to complete the programme of enabling works comprised in Phase 1 of the development master plan. The intention was to meet the standards required of a “Code 4C” runway (“4” referring to a runway of more than 1,800m in length and “C” to an aircraft wing span of 24m to 36m).
63. Before TAG’s involvement the Aerodrome had two operational runways, although at earlier stages of its history three runways had been in use. At the time of TAG’s application for planning permission in 1999 the most heavily used of these was runway 07/25. With a length of 2,400m, runway 07/25 was long enough to accommodate larger transatlantic business aircraft which were unable to operate from alternative airports to the west of London. Runway 11/29 was shorter, at 1,350 metres, and was mainly used at that time by the DERA Aero Club, a flying club for Farnborough employees. To provide for medium and longer range aviation and to accommodate the Farnborough Airshow, it was a requirement of the Rushmoor Local Plan that development proposals would not be permitted if they would lead to any reduction in the existing length of runway 07/25.
64. TAG’s intention was to use only one runway, 07/25, for both take-off and landing and to convert runway 11/29 to use as a taxiway. The main runway is now referred to as 06/24, or to be more precise as runway 06 when the direction of travel is west to east, and as runway 24 when aircraft are taking off or landing from east to west. Because of prevailing wind directions about 70% of take off and landing movements are from east to west, with only 30% in the opposite direction.
65. As part of the engineering works in Phase I of the development, TAG proposed to reconfigure runway 06/24 to achieve two related objectives. The first was to reduce the impact of aircraft noise on surrounding residential areas, while the second was to comply with the obstacle clearance standards required to achieve a CAA licence.
66. Under CAA regulation the minimum permitted distance between the runway landing threshold (the point at which aircraft may touch down) and the runway end (beyond which aircraft may not travel) is prescribed. Before runway modification work began, both runways at Farnborough were 2,400 metres long. Under MoD regulation these were capable of providing a “TORA” (take-off run available) of 2,400 metres and an “LDA” (landing distance available) of 2,074 and 2,080 metres. To accommodate the business aircraft which it wished to attract, TAG needed a TORA of 2,000 and 2,063 metres and an LDA of 1,800 metres. It found that it could not achieve these distances within the more stringent obstacle clearance criteria set by the CAA without infringing the noise contours required by the terms of its planning permission and section 106 agreement. To remain within the noise contours it was necessary for aircraft to land further to the west on runway 24, away from the more sensitive residential boundaries to the east, and to take off earlier on runway 06 to gain height more quickly when crossing those areas. To ensure that take off and landing occurred at a sufficient distance from the boundaries of the Aerodrome it was necessary to move the landing threshold on runway 06 by 181 metres to the east, while on runway 24 the threshold was moved 314 metres to the west. This relocation of the thresholds did not in itself require any physical change to the runway (other than in lighting and surface markings) but without more it would have reduced the operational length of the runway below that which TAG considered essential to accommodate the larger aircraft used for transatlantic flights.
67. The second issue created by the CAA licensing standards concerned obstacle clearance i.e. the distance or clearance available between aircraft landing or taking off from the runway and buildings or other structures on the ground beneath the flight path, including obstacles outside the perimeter of the Aerodrome. In a letter dated 10 February 1997 to the MoD’s selling agents the Aerodrome Manager, Mr Wood, explained that two buildings beyond the Aerodrome perimeter, a former convent and a nursing home, had been identified as infringing the obstacle clearance standards which the CAA was expected to insist upon. The avoidance of these obstacles would result in a reduction of the LDA from 1,800m to 1550m. The solution suggested by Mr Wood was for “the further loss of LDA … [to] be made up by an extension of runway at the western end”.
68. No strengthening of the runway as a whole was necessary to obtain a CAA licence but significant re-grading and resurfacing work was required; of significance to these proceedings the runway required to be modified in two important respects in order to satisfy obstacle clearance standards and to relocate the runway landing thresholds while maintaining the desired TORA and LDA distances:
(a) a 40m long, full width runway extension was constructed at the western end of the runway, in place of an existing concrete surface which had formerly been equipped with catch nets for use as an overshoot area for test aircraft but which was now in poor condition; and
(b) a narrower starter strip 150m long and 30m wide was added, also at the western end of the runway extending the surface beyond the new 40m full width extension.
The combined effect of these modifications has been to extend the physical surface of the runway by 190m at its western end. At the head of the starter strip a turning area has also been created to enable aircraft which have taxied to the end of the runway to turn in readiness for takeoff. The works have permitted a reconfiguration of the runway by relocating the landing thresholds closer to the centre of the Aerodrome and further from neighbouring dwellings on its fringes. As a result aircraft now pass over residential areas at a higher altitude when taking off and landing than would have been possible without the alterations, and noise levels at ground level are consequently lower than they would otherwise have been, enabling the required noise contours to be respected.
69. The work to the runway commenced in July 2001 and (after resurfacing had to be done again over the weekend of 1-4 June 2002) was finally certified as practically complete in time for the July Airshow (although new lighting was not operational until November 2002). The revised runway thresholds were observed from 11 November 2001 and Mr Marks confirmed that they were publicised in a CAA Air Information Publication early in 2002. Other than overnight and at weekends the runway remained open and operational throughout the period of the works.
70. The parties disagree over whether these works constitute “runway alterations” for the purpose of section 9 of the 1973 Act. It is relevant to that argument to note at this stage that although the surface of the runway was extended as I have described, the declared TORA and LDA distances were reduced as a result of the change from MoD to CAA regulation.
The new North Apron
71. An “apron” is described by the CAA in CAP 168, its Civil Aviation Policy document on aerodrome licensing, as “a defined area on land at an aerodrome provided for the stationing of aircraft for the embarkation and disembarkation of passengers, the loading and unloading of cargo, fuelling, and for parking”. Various other definitions with different emphases were referred to in the course of the hearing including the OED definition of an apron as “the surfaced area immediately in front of airport buildings, on which aircraft are loaded and unloaded”.
72. Reflecting its military function, Farnborough’s original irregularly shaped aprons were dispersed at locations around the Aerodrome. On the north side of the runway the Diamond Way Apron was described in the course of the hearing as being shaped like a pretzel, with grassed areas interspersed among the hardened surfaces. Adjacent to it to the west was the West One Apron, around which were located three hangars or maintenance sheds (C, L and M Sheds). Further west was the smaller West Two Apron with two further hangars (N and O Sheds). All three of these aprons to the north west of the main runway were connected by the Diamond Way taxiway. Towards the eastern boundary of the Aerodrome but still north of the main runway were two further aprons, North and North Two, each of which was associated with an adjoining hangar (D and A Sheds). Finally, on the south side of the main runway, and separated from each other by a wide taxiway were the South One and South Two Aprons. The second of these was approximately square with taxiways leading off in three directions and had an area of 16,200 sq m; at 25,700 sq m, irregularly shaped and dotted with grassed areas, the larger South One Apron defies geometric classification. The South One Apron was the centre of the Civil Enclave from 1989 until 2003.
73. Alterations to the aprons at Farnborough were undertaken as part of TAG’s Phase I works. The main Civil Enclave apronage (South One and occasionally South Two) did not meet CAA requirements and its modification and extension was incompatible with the Local Plan which reflected a strong preference for any new facilities to be on the northern side of the Aerodrome. It was therefore in the north that TAG chose to create its new main aprons to replace those of the Civil Enclave.
74. The new North Apron is very different from the old South One Apron which was cramped, irregularly shaped and had restricted access. Extending across the former Diamond Way taxiway and Diamond Way Apron, the new North Apron is a single wide expanse of apronage in front of the new Hangar One. It is bisected by a new wider taxiway allowing convenient access to the runway, and is immediately adjacent to the new terminal building. It has an agreed area (excluding the taxiway) of 46,800 sq m and provides a very much more efficient and convenient layout for business aviation than was formerly available in the Civil Enclave.
75. The North Apron was constructed between November 2001 and 11 October 2002 when practical completion was certified. Sufficient progress had been made in its construction to enable it to be used for aircraft parking in connection with the Airshow commencing on 22 July 2002. E-mail exchanges between TAG and its contractor refer to the need for the apron to be complete and in pristine condition in good time for the opening of the show; the evidence of Ms Bartaby, which I accept, was that that deadline was met.
76. Other work of significance to the development of the Aerodrome but of less direct relevance to these references was also completed. In particular, a new terminal building adjacent to Hangar One and the North Apron was constructed between June 2004 and December 2005, coming into use for the first time in January 2006. While the terminal building was under construction the north eastern end of the North Apron was kept out of use, as it had been prior to May 2003. Up to that time a temporary fence had cordoned off a small part of the apron and a section of taxiway together having an area of approximately 1,000 sq m, which can be seen in a photograph taken in November 2002; the photograph suggests that at that time the site of the future terminal was used by contractors for the storage of materials and the parking of skips and vehicles. The wisdom of separating that working area from the apron is obvious and the presence of the temporary fence does not call into question the evidence that the apron itself was completed by October 2002; nor does the possibility that minor items of snagging work may have remained to be undertaken undermine that evidence.
77. At a pre-trial review in May 2015 the claimants resisted an application by TAG to vary the preliminary issues and made it clear at that stage that they did not wish to amend their claim to incorporate reference to work, including the cordoning off of the North Apron, carried out after 1 January 2003. The claimants subsequently reconsidered their position and on the second day of the hearing of the preliminary issues sought permission to amend their claim to plead that runway and apron alterations had continued until May 2003. I refused that application for reasons given in a short judgment delivered on 8 July.
Hangar One
78. Phase 2 of TAG’s development programme included the construction of the new Hangar One immediately adjoining the North Apron, with a floor area of 15,042 sq m. Work on Hangar One began in October 2001, and all three bays were roofed and had complete floor slabs by 12 June 2002. The hangar doors had not been installed by the time of the Airshow, but a TAG board minute of 24 October 2002 reported that the hangar bays had been used during the show. The doors had been installed, together with power and other services, by the time practical completion was certified on 29 November 2002.
79. The hangar also includes office space for use by customers or service providers, but it is less clear when this was completed. It appears that the fitting out of at least part of the office space serving one of the bays was not completed until a date early in 2003. Ms Bartaby was cross examined about this element of the work and was sure that only office fit out works were involved, and that the aircraft accommodation within the building was complete when the practical completion certificate was issued. I accept that evidence. The office fit-out did not prevent the completed hangar from being used for the first time on 11 December and on 19 December 2002 the first paying business jet was welcomed to the new facility.
TAG’s use of the Aerodrome before the grant of the lease
80. While the work which I have described was undertaken, TAG’s rights and obligations in relation to the Aerodrome were governed by three documents. The first and second of these I have already mentioned: the Agreement for Lease entered into with the MoD on 17 February 1998 and the underlease of the Civil Enclave granted to TAG by BAE on 6 October 1999. The third important document was a Management Contract between TAG and the MoD by which TAG assumed responsibility for the provision of air traffic services, ground facilities, equipment and property at the Aerodrome with effect from 1 January 2001.
81. It will be necessary for me to consider the terms of these agreements in greater detail in order to address TAG’s case that the MoD remained in occupation of the Aerodrome until at least 31 December 2002 (the critical period during which TAG carried out the earliest phases of the improvements I have already described). At this stage it is necessary only to indicate TAG’s status under each of the documents.
82. As underlessee of the Civil Enclave TAG had possession of the area of land and buildings centred around South Apron One which were within a ring fence on the southern side of the Aerodrome. The Enclave provided no runway so rights over the Aerodrome itself were necessary for civilian flying to take place. Those rights were conferred by Schedule 1 of the Civil Enclave underlease, paragraph 4 of which dealt specifically with “Aircraft Rights”. These permitted TAG to operate up to 25,000 ATMs per year from the Aerodrome and to manage the ground operations of aircraft at such times as they were within the Civil Enclave itself. No part of the Enclave was the subject of the improvement works on which these references are based, and no part was included in the Lease of the Aerodrome granted to TAG on 5 February 2003.
83. Completion of the Agreement for Lease of 17 February 1998 was conditional on a CAA licence and satisfactory planning permission being obtained and TAG enjoyed no proprietary rights over the Aerodrome itself before completion. TAG’s relevant rights under the Agreement included a right of access allowing it on notice to enter the Aerodrome (and neighbouring MoD land) for the purpose of carrying out previously approved works under the supervision of the MoD’s surveyor (clause 6.1). By clause 6.3 if substantial works were completed by TAG, the MoD agreed to “give consideration (acting reasonably) to any request that [TAG] at its own expense take over the operation of the [Aerodrome] on behalf of the” MoD until the grant of the Lease.
84. In the event the parties did not follow the course anticipated by clause 6.3 of the Agreement and responsibility for the operation of the Aerodrome was assumed by TAG before any substantial works had been completed. The management of the Aerodrome by the MoD, through its Defence Evaluation and Research Agency (“DERA”), was required to be terminated with effect from 31 December 2000 in anticipation of DERA’s privatisation. On 2 August 2000 the MoD invited TAG to enter into negotiations for a suitable contract for it to assume responsibility for “the provision of support services”. TAG was keen to cooperate, as it saw the opportunity to assume management responsibility as a means of controlling its own costs of operating from the Civil Enclave. The eventual outcome of the MoD’s invitation was a complex document entitled Contract for the Management of Farnborough Aerodrome (“the Management Contract”) agreed between TAG and the MoD which took effect from 1 January 2001.
85. The Management Contract required TAG to provide a long list of services which had previously been undertaken by DERA’s contractor Amey Comax. These included air traffic control, fire, rescue and ambulance services, aerodrome maintenance, lighting and electrical services, snow clearing, security and “strategic management” (Schedule 5). To enable it to undertake these functions TAG was permitted to use the fixed plant, equipment and accommodation at the Aerodrome “on Ordinary Loan for the purposes of the Contract and for no other purposes whatsoever” (paragraph 23.1m, Schedule 10). To similar effect paragraph 2(b) of “DEFCON 76”, entitled Contractor’s Personnel at Government Establishments, confirmed that land or premises made available to TAG was made available free of charge and solely for the purpose of performing the Management Contract. The Management Contract remained in force until TAG assumed responsibility for management of the Aerodrome in its own right under CAA regulation with effect from 1 January 2003.
The grant of the CAA licence and the Aerodrome Lease
86. Completion of the runway works, the new North Apron and Hangar One was achieved before the end of 2002. The new control tower came into service on 25 November 2002, and on 23 December 2002 the CAA confirmed to TAG’s solicitors that it was satisfied that TAG was competent to secure that the Aerodrome and the arrangements made for it were safe for use by aircraft. Having satisfied the CAA in that regard TAG became entitled to an aerodrome licence.
87. The CAA’s licence took effect on 1 January 2003 and, as had been confirmed by the MoD’s Director of Flying on 16 December 2002, at that point the regulation of the Aerodrome by the MoD ceased. Condition 18 of the outline planning permission, requiring approval of the proposed runway configuration, was discharged by Rushmoor on 19 December 2002 after receiving confirmation of the CAA’s intention to grant an aerodrome licence. Use of the Aerodrome for flying pursuant to the outline planning permission commenced on the grant of the licence.
88. With the grant of the CAA licence the second condition precedent stipulated by the Agreement for Lease was satisfied and on 5 February 2003, after payment by TAG of the agreed premium of £2 million, the Aerodrome Lease was granted.
Subsequent planning applications
89. Three further relevant planning applications were made by TAG. In October 2005 it applied under section 73 of the Town and Country Planning Act 1990 for a variation of condition 11 of the outline planning permission to increase the number of weekend and bank holiday flights at the Aerodrome from 2,500 movements per year to 5,000 movements per year. After vigorous local objections Rushmoor refused the variation in June 2006 but following an appeal and a public inquiry, the variation was granted by the Secretary of State in March 2008.
90. A variation granted under section 73 of the 1990 Act amounts in law to a wholly new planning permission but (except where they had already been satisfied) the conditions attached to the original October 2000 permission were re-applied to the new permission, including in particular the limits on the permissible floor area of new and existing buildings.
91. A reserved matters application for the approval of a new ground support facility to replace C Shed (which adjoined the North Apron opposite Hangar One) was submitted in September 2010 and approved in October 2010.
92. In 2009 TAG made a further application under section 73 of the 1990 Act, this time to vary the condition of the outline permission which restricted to 28,000 the total number of business aviation movements per year and to increase the restriction to a maximum of 50,000 movements per year, including an increase in the number of flights at weekends and bank holidays from 5,000 to 8,900 per year. Once again a refusal by the local authority was followed by an appeal and the grant of the requested variation by the Secretary of State in February 2011 after a public inquiry. The other conditions attached to the 2000 outline planning permission were substantially repeated in the 2011 permission but the period for submission of reserved matters was extended by a further five years to expire in February 2016.
The remaining phases of development: Hangar Two and the West One Apron
93. TAG’s original expectation was that Phase 3 of its development master plan would be implemented between 2005 and 2009 and would provide approximately 6,000 sq m of new hangar space per annum in six new hangars. As previously explained the design and scale of the proposed hangars changed significantly but by 2007 the new three bay Hangar One was reaching capacity. TAG’s new CEO, Mr Brandon O’Reilly, was appointed in January 2007. He was soon advised by operational staff that the company’s ability to accommodate aircraft with contracts entitling them to park in hangars was under pressure.
94. In June 2007 TAG’s board commissioned Mr O’Reilly to produce a detailed business plan enabling them to consider investment in a further new hangar. Mr O’Reilly presented his business case to the board in October 2007 and explained that without additional hangar space the Aerodrome’s ability to attract customers wishing to base their aircraft there would be prejudiced. At the same meeting board approval was given for the detailed planning work and construction of Hangar Two.
95. Hangar Two replicates the wave form of Hangar One and provides an additional 10,800 sq m of aircraft accommodation. Reserved matters approval for the construction of Hangar Two was given first on 24 April 2008 and then, in a revised form, on 9 October 2008 by which time preparatory work had already commenced. Its construction on the site of two existing buildings required the reconfiguration of the original west apronage (referred to as West One) to create a new West One Apron which extends to 32,600 sq m immediately in front of Hangar Two and straddling the main taxiway. The new ground support facility for which planning permission was granted in October 2010 now stands on the opposite side of the West One Apron from Hangar Two.
96. The construction of Hangar Two and the West One Apron commenced with site clearance and the erection of hoardings in September 2008 but the collapse of Lehman Brothers in the same month precipitated a global financial crisis which caused TAG’s board to reconsider the wisdom of its proposed investment in the new infrastructure. Work was first slowed and then suspended altogether on 5 February 2009. After reviewing the cost of alternative approaches at a further meeting on 24 March 2009 the board decided to complete the West One Apron and the foundations and substructure for Hangar Two, but not yet to progress the structure of the building above ground level which would await an improvement in the climate for business aviation. It is agreed that this limited phase of works, including the West One Apron, was completed by June 2010. On 23 March 2010 the board gave the instruction to resume construction of the remainder of Hangar Two so that it could be completed in time for the opening of the London 2012 Olympic Games.
97. The new West One Apron was substantially complete by 28 May 2010, when it first came into use, but permission had not yet been obtained to build the new ground support facility. The original facility, housed in C Shed immediately adjoining the West One Apron, remained in use for the time being but it was intended to demolish C Shed and incorporate its footprint into the new apron following completion of the new ground support building. The incorporation of the site of C Shed as the final portion of the West One Apron was not completed until 6 July 2012.
98. The construction of Hangar Two was declared practically complete on 7 February 2012, although one bay had been available for aircraft parking by 3 October 2011.
Ms Bartaby’s dealings with Mr Scott
99. At this point in the narrative of events it is necessary to track back to recount in a certain amount of detail dealings which took place in 2001 and 2002 between Ms Bartaby, TAG’s director of planning and development, and two chartered surveyors who hoped to represent local residents in bringing claims under the 1973 Act. Those dealings provide the basis of the Johnston claimants’ contention that, whenever the works to the Aerodrome were in fact completed, TAG is estopped from suggesting that the relevant date for the purpose of claims under the 1973 Act was earlier than 1 January 2003.
100. The first chartered surveyor to see the opportunity for instructions at Farnborough was Mr Gerald Scott FRICS, who wrote to Ms Bartaby on 2 November 2001. He introduced himself as specialising in compensation matters and said he had been contacted by “many local residents”; he explained that his interest was in establishing “the correct dates for the submission of claims” under the 1973 Act and requested details of TAG’s proposed timetable of works. He received a substantive reply from Ms Bartaby on 31 January 2002 confirming the dates of commencement and anticipated completion of the Phase 1 and Phase 2 works (the runway improvements, the control tower, the North Apron, Hangar One and the new terminal building). Ms Bartaby began her letter by making what she described as “the first salient point” namely:
“that this site is owned by the Ministry of Defence and all flying at present is undertaken under licence from the MoD. … All works to achieve a CAA licence must, of necessity, be undertaken under this regime.”
101. In a subsequent letter to Mr Scott dated 15 July 2002 Ms Bartaby provided details of the work being undertaken to the runways: the re-profiling to meet CAA requirements, the reconfiguration of the runway thresholds to redefine the active part of each of the 06 and 24 runways, and the new 40m runway extension and 150m runway starter strip at the western end. In response to Mr Scott’s request that she identify the responsible authority for the purposes of making claims for compensation Ms Bartaby added this:
“TAG will be the responsible party, but bearing in mind the current MoD responsibility for the site, I believe TAG will only become the responsible party once the lease is completed – sometime early in 2003.”
102. Mr Scott wrote to Ms Bartaby again on 24 September 2002 emphasising the need for her to identify an “exact date” for completion of the works, as eligibility to make a claim under the 1973 Act depended on the claimant having owned the property in question on the relevant date. She responded on 30 October 2002 regretting “that there is no “exact date” in relation to the runway works” because “the runway has never ceased to be in operation.”
103. Mr Scott hoped to act on behalf of local residents in bringing claims against TAG but it appears that by this stage none had yet instructed him. He had first approached Mr Marks, the Chairman of FARA, early in 2002 and meetings took place between them in March that year and again, with two other FARA members including Dr Appleton, in April and September of that year. Mr Scott was subsequently invited to make a presentation to FARA’s members at the association’s AGM on 9 December 2002, at which he handed out material explaining the basics of the statutory entitlement to compensation, including the significance of “the relevant date” and the “first claim date” in the timing of claims. Mr Scott’s paper informed the AGM that he had recently held a helpful meeting with Ms Bartaby at which “we were able to agree that TAG would be the responsible authority for the submission of claims and that the relevant date would be 1 January 2003”. The printed notes handed out at the meeting by Mr Scott were retained by, amongst others, Mr Cull who also produced his copy of the agenda on which, at the time, he had noted the same date against Ms Bartaby’s name and added the words “relevant date”.
104. Ms Bartaby made a file note of her own of her meeting with Mr Scott, which had taken place on 7 November 2002. The note is dated 15 November and records that “the specific matter to be discussed was the date of completion of the “works” under which claims for compensation … might be made”. The note is a near contemporaneous record by Ms Bartaby, prepared for her own use, and having heard her evidence I am confident that it is an accurate summary of the meeting. Where the note differs from the account given to the FARA AGM by Mr Scott, from whom I have not heard evidence, I place reliance on it.
105. It is apparent from Ms Bartaby’s file note that her discussion with Mr Scott was wide ranging. It touched on the qualifying conditions for claims under the 1973 Act, whether there had been a runway extension, whether noise levels had been higher in the past, and the significance of the Crown exemption. The greater part of the note records a discussion about the relevant date and the date from which claims could be made. I quote only the most relevant passages:
“There was a moot point as to when TAG becomes the responsible body. This could be one year from the grant of the CAA licence – i.e. 1 January 2004, or if TAG were judged to be the responsible body as it manages the site on behalf of the MoD, claims might be valid one year from completion of the runway extension – November 2002. (I had explained to him that there had not really been an “opening” as the runway had been in use throughout the construction, but partial completion of the runway was signed off on 12 November 2001.)
I explained that there was still a possibility that TAG may not complete the lease that adds to the uncertainty about dates. In response, GS suggested that TAG might reject claims if one year were to pass after the completion of the works before it becomes the responsible body (this will of course happen if logic is followed and TAG is not the responsible body until January).
I pointed out that another argument was that although the work to the runway was finished, until the CAA licence is granted, the work will not be fully signed off as satisfactory for purpose and therefore useable.
GS volunteered that he felt that a sensible relevant date might be 1 January 2003. He said he would give further consideration to this and respond to me.”
106. Ms Bartaby’s note discloses a state of considerable uncertainty in her own mind over the correct answer to the question she was being pressed on by Mr Scott, namely what, for the purpose of the 1973 Act, was the date of completion of the works in circumstances where the runway had never closed. The note does not record the agreement referred to by Mr Scott in his presentation to the FARA AGM that “the relevant date would be 1 January 2003”. I am satisfied that there was no such agreement but the possibility of taking the date of the CAA licence was clearly discussed, as was the possibility of adopting 1 January 2003. Although he had apparently offered to give further thought to that date Mr Scott did not contact Ms Bartaby again.
107. Despite his efforts some of the members of FARA were apparently not much impressed by Mr Scott’s presentation; others were put off by his unwillingness to accept instructions to undertake work on a contingency basis. Whatever the precise reasons of individuals the general feeling of the FARA meeting was against instructing Mr Scott. This lack of enthusiasm appears to have been mutual. Mr Scott’s own file includes a manuscript note in which he recorded his impressions of the FARA AGM; he was clearly disappointed both by the numbers in attendance (he recorded that only about 40 individuals were present, although Mr Marks told me he thought there had been more) and by their reluctance to pay a fee for his services. Mr Scott wrote two letters to Mr Marks immediately after the meeting and again in January 2003 asking for further information about the level of interest before deciding how he might proceed. Mr Marks either did not receive those letters or chose not to reply to them, and at that stage Mr Scott’s involvement with the claimants petered out.
Lloyd Williams and the section 15 statements
108. Early in 2003 Mr Marks, and through him FARA’s members, were introduced to the firm of Lloyd Williams, chartered surveyors, who subsequently agreed to act for them in claiming compensation under the 1973 Act. The initial introductions may have been by Mr Dandy, for whom Lloyd Williams had acted in separate county court proceedings arising out of the adequacy of the information he had received from his vendor when buying his house in Farnborough. Lloyd Williams then corresponded with Ms Bartaby, without suggesting that they had yet been instructed, but mentioning that they had been asked about the possibility of a claim “by several residents who live to the east of the runway at Farnborough”.
109. On 17 February 2003, in response to a specific request from Mr Walker of Lloyd Williams to provide a statement for the purpose of section 15 of the 1973 Act, Ms Bartaby completed and signed a pro forma document which he had sent to her. The document comprised a single page questionnaire, but it was returned by Ms Bartaby with an accompanying statement of her own, together with two explanatory plans prepared by one of TAG’s staff. In a covering letter returning the completed questionnaire Ms Bartaby said that it should be read together with her statement.
110. The Lloyd Williams questionnaire was headed:
“Land Compensation Act 1973 – Part 1 (As Amended)
Section 15 Statement (Relevant Date)
Farnborough Airport Extension of Runway & Taxiways (2003)”
The document then contained four questions which Ms Bartaby answered as follows:
“1. The Scheme Name is Farnborough Airport
2. Relevant Date for Scheme please see attached
3. Please define Scheme boundaries, Please supply a plan showing the extension(s) See attached
The name and address of the responsible body for service of Part 1 claims is:
[Ms Bartaby inserted TAG’s name and address]”
111. The statement attached by Ms Bartaby to the questionnaire was headed “Statement of Works carried out at Farnborough Aerodrome”. It first listed the works to the runway, specifically mentioning the 40m runway extension, the starter strip and the reconfiguration which was stated to have reduced the available take off and landing distances; the original and reconfigured TORA and LDA distances were provided together with a diagram showing the reconfigured runway thresholds. A separate answer and a second diagram referred to the new apron constructed to replace existing aprons. The statement dealt with timing in paragraph 6 as follows:
“These works were completed during 2002. There is no clear date as various elements have been phased in. The use of the existing runway did not cease whilst works took place. As the works were designed to achieve a CAA licence, the date of this licence may be considered to be the relevant date. This was 1 January 2003.”
Ms Bartaby’s reference in paragraph 6 to the “relevant date” followed Lloyd Williams in adopting the language of the 1973 Act. This document is one of the two foundations on which the claimants construct their case that TAG is estopped from contending for a relevant date other than 1 January 2003.
112. At about the same time as Lloyd Williams were in correspondence with Ms Bartaby Dr Richard Appleton, the Vice Chair of FARA, was engaged in communications of his own with her. There were at least two conversations between them, during which Dr Appleton requested information which Ms Bartaby subsequently supplied in writing. It is not clear whether Ms Bartaby was aware at that stage of Dr Appleton’s role in FARA. Nevertheless, in a letter of 23 December 2002 Ms Bartaby wrote to him as follows:
“Further to our conversation last week, I confirm that the work that has been undertaken at Farnborough Aerodrome, specifically, the extension and alteration of the runway and the construction of a new apron, constitute a scheme under the Land Compensation Act 1973.
For the purpose of the 1973 Act, it is also my understanding that the whole of the airport may be treated as “public works” when the MoD grants TAG a lease.”
Ms Bartaby and Dr Appleton spoke again early in February 2003, and on 17 February she sent him a copy of the statement she had supplied that day to Lloyd Williams (although not, it would appear, a copy of the completed questionnaire). In her covering letter Ms Bartaby described the documents as “a statement addressing the completion date for the scheme”.
113. After receiving Ms Bartaby’s response to their request for information Lloyd Williams provided FARA with a round robin letter dated 28 May 2003 addressed only to “owner/occupier”; the letter was distributed to FARA members by Mr Brothers, the Association’s Secretary, but it may have received much wider circulation (possibly to as many as 1300 Farnborough residents, if contemporaneous press reports are accurate). Amongst those who received it were Mr Cull, Mr Goodeve-Ballard, Mr Milne, and Mr Morrison all of whom gave evidence. In the letter Lloyd Williams offered, for a fee of £50, to notify TAG of an owner’s claim for compensation on 5 January 2004, the first working day after the statutory first claim date. The letter went on to advise that, unless settled by agreement, the claim would expire if it was not referred to the Lands Tribunal before 1st January 2010.
The Johnston claim notices
114. The first notices claiming compensation were submitted to TAG by Lloyd Williams on 5 January 2004, including those on behalf of Mr Cull, Mr Dandy, Mr Goodeve-Ballard, Mr Morrison and Mr Milne. Further claim notices were submitted on behalf of additional claimants on later dates in 2004 and 2005; one of those who gave evidence, Mr Dragwidge, was amongst a large group of claimants who did not submit a notice until 19 October 2009, by which time Lloyd Williams had ceased to act and been replaced by Hunt Scott as the claimants’ main advisers. A schedule agreed between the parties showed that many claims were signed even later than that with 66 being completed in December 2009.
115. I will refer to these documents in greater detail when considering whether they sufficiently complied with the provisions of section 3 of the 1973 Act concerning the content of claim notices. At this stage it is sufficient to note that they were on a standard printed form. Mr Hunt, who used a slightly adapted version of the same form, told me that it was available to download from the website of the Highways Agency. The details of the claims had been completed by Lloyds Williams, who were identified as the professional advisers acting on behalf of the claimant and who signed the notices in that capacity.
116. The claim notices were headed “Claim for Compensation” under the 1973 Act and specified the name and address of the individual claimant. They typically continued with the following information:
“2. The public works which give rise to the claim. Please state:
(1) the works concerned: Farnborough Airport – 2003
(2) the physical factors: All the Physical Factors
(3) the relevant date (see note 4) 01/01/2003”
In many of the notices which I was shown the relevant date had initially been completed in typed text as 05/01/2003 but altered in manuscript to 01/01/2003. There were other variants. In particular in answer to question 2(1) the works concerned were sometimes described as “Farnborough Airport – 2003 Scheme” to which the word “negotiations” was added in several examples. It has not been suggested that these relatively minor variations are material.
117. The document also required the claimant to state the amount of compensation claimed. Although it is not apparent from the notices themselves, the compensation figure included by Lloyd Williams is now known to have been based on a standard 15% of the estimated capital value of the claimant’s property before the alterations to the Aerodrome.
Mr Hunt’s involvement and the Johnston references
118. In 2007, on the retirement of Mr Brett Walker, the surveyor who had been managing the claims at Lloyd Williams, the firm introduced its Farnborough clients to a local surveyor with expertise in compensation matters, Mr Chris Hunt of Gerald Scott Ltd, Chartered Surveyors. Gerald Scott was the same Mr Scott who had corresponded with Ms Bartaby in July 2002 and had addressed the meeting of FARA in December of the same year. Mr Hunt had acquired the name of the firm by agreement with Mr Scott in June 2005 and had been given access to the files of Mr Scott, but he was not a partner of Mr Scott nor an employee of his firm.
119. Mr Hunt continued to garner clients and to submit claim forms on their behalf in substantially the same terms as had been submitted by Lloyd Williams. He adopted the same approach to completing the claim forms, describing the works giving rise to the claim in the same way (usually with the addition of the word “scheme”). He adjusted the level of compensation claimed from Lloyd Williams’ standard 15%, to 20% in claims for homes which were sufficiently close to the runway to be within earshot of planes preparing to take off. Mr Hunt described to me how, as late as December 2002 he had been delivering leaflets in the snow to the most seriously affected streets, encouraging new claimants to contact him urgently. By 31 December 2009 Mr Hunt and Lloyd Williams had, between them, submitted claim notices to TAG on behalf of 242 prospective claimants. These claim notices were followed up by an equal number of references to the Tribunal which were delivered by Mr Hunt by hand on 31 December 2009.
The Dandy claim notices
120. The five claim notices relied on in the Dandy proceedings were submitted on various dates in October 2011, and in March and June 2013. They are rather fuller than those served by Lloyd Williams and Mr Hunt which instigated the Johnston claims. In particular they include a fuller description of the works with which the claims are concerned, identifying them as:
“All runway and/or apron works and/or alterations carried out pursuant to the outline planning permissions granted 11 October 2000 … and any consequential permissions (i.e. varied permissions pursuant to section 73 Town and Country Planning Act 1990) within the meaning of the Land Compensation Act 1973.”
121. It was not suggested that this form of claim notice failed to satisfy the requirements of section 3 of the 1973 Act.
The issues
122. The Tribunal’s order of 9 March 2011 directed the trial of six preliminary issues in the Johnston references. These have been refined as the references have proceeded and I now propose to consider them in the following order.
123. In the Johnston references:
Issue 4 Were the works on which the claims are based (or any of them) “runway or apron alterations” within the meaning of section 9(6) of the Act?
Issue 5(a) What was the “relevant date” for the purpose of the Johnston claims?
Issue 1 Were the notices of reference delivered in time or are the claims barred by limitation?
Issue 5(b) If the claims would otherwise be barred by limitation, is TAG estopped from denying that 1 January 2003 was the “relevant date”?
Issue 3 Did the claimants (or any of them) serve valid notices of claim?
Issue 2 Was the Aerodrome in the occupation of a government department at the “relevant date” so that the claims are barred by section 84(1) of the Act?
124. The preliminary issues ordered on 8 May 2014 in the Dandy references will then be considered in the following order:
Issue 4 Were the works on which the claims are based (or any of them) “runway or apron alterations” within the meaning of section 9(6) of the Act?
Issue 5 Can the works carried out in 2001 and 2002, and the works carried out between 2008 and 2012, be regarded as a single set of runway or apron alterations?
Issue 6 What was the “relevant date” (or “relevant dates”) for the purpose of the Dandy claims?
Issue 1 Are the claims (or any part of them) barred by limitation?
Issue 3 Did the claimants (or any of them) have “qualifying interests” at the material times entitling them to claim compensation under the Act?
Issue 2 Are any parts of the claims barred by section 84(1) of the Act?
Johnston issue 4: Are the works on which the claims are based (or any of them) “runway or apron alterations” within the meaning of section 9(6) of the Act?
125. Part I of the 1973 Act applies to alterations to an aerodrome only if they are “runway or apron alterations” within the meaning of section 9(6), that is:
“(a) the construction of a new runway, the major re-alignment of an existing runway or the extension or strengthening of an existing runway; or
(b) a substantial addition to, or alteration of, a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft.”
126. The works on which the Johnston claims are based are the extension of the runway at its western end by the construction of the 40m full width extension and the 150m starter strip, and the construction of the North Apron. Although not mentioned in the claimants’ statement of case, reliance is also sought to be placed on the construction of Hangar One, which is said to fall within section 9(6) on the grounds that it should be regarded as an apron, albeit a covered one.
127. Other works carried out in the early phases of TAG’s development of the Aerodrome, including the construction of the control tower and the terminal building, are not material to the references. Although certain taxiways were widened and realigned it has not been suggested that those works were substantial or that they require separate consideration.
Runway extension
128. The issue between the parties is whether, when section 9(6) refers to “the extension … of an existing runway”, it is concerned with the length of the constructed runway surface, as the claimants contend; or whether it is concerned only with the extent to which the runway may be used by aircraft taking off and landing without infringing the prevailing regulatory regime, as TAG contends. This alternative measure of the length of a runway was referred to in the evidence as the “declared distance”, or sometimes as the “operational runway”, and is delimited by the CAA approved TORA (Take Off Run Available) and LDA (Landing Distance Available).
129. There is no dispute that the physical surface of the runway has been extended. Prior to TAG’s work the constructed runway was 2,400m long, excluding the concrete overshoot area at the western end. On completion of the work the constructed runway was 2,590m long, including the starter strip. Mr Village QC argued that the “starter strip” could not be a runway extension, as it is not runway width and thus, under CAP 168, can only be used for take-off. I am satisfied that when considering whether the runway has been extended it is appropriate both to exclude the overshoot area (because it was used only in emergencies in connection with test flying) and to include the starter strip (which is used by all aircraft taking off from the western end of the runway).
130. Nor is there any dispute that the declared distances applicable to the runway have been reduced as a result of the change from MoD regulation to the more prescriptive CAA regime. Before 1 January 2003 the runway operated with a TORA of 2,400m (i.e. the full length of the runway) and an LDA of 2080m in one direction and 2074m in the other. Since the grant of the CAA licence the declared TORA has been recorded as 2,000m in one direction and 2,063m in the other, with the LDA set at 1,800m.
131. This issue raises a very short question of construction of section 9(6). My immediate reaction on reading the statute was that the claimants’ contentions were clearly correct because section 9 is concerned primarily with physical alterations. In particular section 9(1)(a) identifies specific civil engineering operations: alterations to the carriageway of a highway, and section 9(1)(b) similarly refers to public works other than a highway having been reconstructed, extended or otherwise altered. The focus of these provisions is clearly engineering operations which bring about physical changes to land used for public purposes, although it is right to note that, in the case of public works other than a highway or aerodrome, section 9(c) applies to a change of use without the need for any associated physical change. The language of section 9(6)(a) also indicates that the alterations with which these provisions are concerned are physical alterations, specifically construction, re-alignment, extension or strengthening.
132. On behalf of TAG Mr Village QC submitted that Parliament was clearly focusing on the useable extent of the runway, i.e. on the declared distances, and not on the length of the runway “pavement”. He developed a series of arguments in support of his contention that extending a runway by 190m would not be a runway extension if it coincided with a regulatory change which reduced the operational portion of that runway.
133. First, he referred to the practical importance of the declared distances. Those parts of the runway which are outside the declared distances cannot be used for take-off or landing, and any violation of the declared distances may result in a CAA sanction, including the suspension or revocation of an aerodrome licence. It is the declared or operational length of a runway which determines its capacity, the nature of the aircraft that can use it and therefore its environmental effects. Declared distances are the key characteristic of a runway for the purpose of CAA regulation under CAP168, with requirements such as obstacle limitations and glide-slopes being determined by reference to declared distances, not length of tarmac. In addition, declared distances constitute the relevant distances for the application of the weight and performance requirements of the Air Navigation (General) Regulations in respect of aeroplanes flying for the purpose of public transport.
134. Secondly, Mr Village suggested that focussing on declared distances was consistent with the scheme of the 1973 Act. Section 9(6)(a) defines a “runway alteration” as comprising “the construction of a new runway, the major re-alignment of an existing runway or the extension or strengthening of an existing runway”. It was relevant to consider the company kept by the expression “runway extension”. The other categories of alteration all involve material changes in the air-traffic handling capabilities of the runway, which are likely to be significantly more intrusive for residents. The purpose of a “true” runway extension (when declared distances increase), was to enable aircraft which were previously unable to use a runway to do so. Here, by contrast, both the declared distances and the handling capacity (in terms of certain larger types) of the “existing runway” have reduced.
135. Thirdly, TAG’s argument was said to be consistent with section 9(7) of the 1973 Act, which makes it clear that references in that section to a change of use do not include references to the intensification of an existing use. Mr Village referred to the 1972 White Paper “Development and Compensation – Putting People First” which had preceded the Act and which emphasised that the statute was aimed at the introduction of new, unforeseeable uses, which fundamentally alter the character of the previous use. He drew attention in particular to paragraph 25 of the White Paper:
“These new injurious affection provisions will not apply where there is simply an increase in the use of the works. The use of existing facilities up to their full potential capacity must always be expected, including that which may be the consequence of a road or air traffic management scheme. However, in connection with roads and airports there could be works carried out which significantly affect surrounding amenity but which could not in the normal run of things have been foreseen by those choosing to live close by. The new right will therefore apply to the use of significant alteration works as well as to the use of new works. In the case of roads, the works which may give grounds for compensation will be those which alter the location, width or level of the carriageway. This means for example that where a road is double-decked or a two lane road becomes three, the new injurious affection scheme will apply to surrounding property affected by the noise and smell. In the case of existing aerodromes, such works will be the construction of new runways and the relocation, extension or strengthening of existing runways.”
136. Mr Village also pointed out that as a result of the reconfiguration of the runway it was no longer able to accommodate certain larger aircraft which had previously been able to use the Aerodrome, such as the Boeing 767 and Airbus A330, and the Boeing Business Jets 2 and 3. That, Mr Village suggested, was inimical to the suggestion there has been an “extension … of an existing runway”.
137. None of these arguments have persuaded me that my initial reaction to section 9, that it is concerned primarily with physical alterations to public works, was unreliable. The 1973 Act contains no definition of “runway”, and I do not consider that CAP 168, the CAA’s licensing code for aerodromes which was first published in 1974, provides a reliable point of reference to what Parliament must have intended by that ordinary word. CAP 168 is helpful up to a point in providing a definition of a runway as “a defined rectangular area, on a land aerodrome, prepared for the landing and take-off of aircraft along its length”, but this seems to me to focus on the land, “defined” and “prepared”, rather than on any regulatory constraints on the use of that land.
138. As far as the scheme of the Act is concerned, I have already commented on the impression created by the statutory language; the emphasis on physical change is supported by the extract from the White Paper. Mr Village’s contrary submission that a runway extension will only be an extension for the purpose of section 9(6) if it is associated with a material changes in the air-traffic handling capabilities of the runway is inconsistent with Neuberger LJ’s explanation of the “underlying assumption” at paragraph 36 of Brunt (see paragraph 33 above): “intensification due to significant runway alterations; these give an automatic right to claim compensation.”
139. Acceptance of Mr Village’s argument would also have surprising consequences, inconsistent with the object of the Act to provide compensation to those whose property has been adversely affected by new or altered public works. An alteration involving the extension of one end of a runway may, for the first time, cause interference by noise, vibration, discharges or other physical factors, with the owner’s enjoyment of adjoining property which has not previously been significantly affected. On TAG’s case, if such an extension was matched by a reduction in the length of the runway at the opposite end, or a change in thresholds, so that the total declared distance either remained the same or was reduced, no compensation would be payable to the home owners affected by the extension. The fact that the total TORA and LDA might have been reduced, or that beneficial consequences might have been experienced by residents at the opposite end of an extended runway, would be nothing to the point as far as the inhabitants of newly affected properties were concerned; to them all that would matter would be their own proximity to aircraft movements.
140. I am therefore satisfied that, whatever changes may take place in declared distances or thresholds, and whatever may happen at the opposite end of a runway, lengthening an existing runway by 190m over land not previously built on, amounts to the extension of that runway and qualifies as a runway or apron alteration for the purpose of section 9(6) of the 1973 Act.
Apron alterations - extent
141. It is the Johnston claimants’ case that there was a substantial addition to, or alteration of, the Aerodrome apron by the construction of the North Apron in 2002, and that the main purpose of that apron was the provision of facilities for a greater number of aircraft. TAG’s case is that the completion of the North Apron, in substitution for the former South One and Two aprons, did not amount to a substantial net increase in the apronage at the Aerodrome and that, in any event, the purpose for which the new apron was provided had nothing to do with the number of aircraft which could use the Aerodrome’s facilities.
142. In support of his argument on the issue of substantiality Mr Wald, on behalf of the claimants, referred to a decision of the Court of Appeal in a judicial review of the grant of a certificate under section 15(2) of the 1973 Act in relation to alterations carried out at Plymouth Airport: R v Secretary of State for the Environment ex p. Plymouth City Airport Ltd (2001) 82 P & CR 20. The works in question had involved the construction of a pad or apron to enable two Royal Navy helicopters to be stationed at the airport. The pad had an area of 0.295 hectares and the airport operator complained that, in accepting that this was a substantial addition, the Secretary of State had considered the newly developed area only in absolute terms and had failed to consider the relationship between that area and the facilities of the airport as a whole. The Court of Appeal dismissed the appeal against the High Court’s refusal to quash the certificate. The passage on which Mr Wald relies is at paragraph 29; referring to the Secretary of State’s decision letter the Court said this:
143. The full extent of the apron and hangar space at the Aerodrome, as it evolved between April 2001 and August 2012, is shown on a series of drawings prepared by Mr Greener, a member of TAG’s staff. The only relevant drawings for the purpose of the Johnston references are those showing the position on 1 April 2001 and on 31 December 2002. On the earlier date the aprons principally available for use in connection with the Civil Enclave extended to 4.12 hectares comprising the South One Apron (2.57 ha) and the South Two Apron (1.55 ha), while the total apron space at the Aerodrome as a whole covered 10.85 hectares.
144. Since its completion in November 2002 the new North Apron (including the area now designated the “Terminal Ramp”) occupies a total area of 4.68 hectares. As it was built over the area formerly occupied by the pretzel-shaped Diamond Way Apron (1.04 ha), the North Apron represented a net addition to the total apron space of 3.64 hectares (these dimensions exclude the taxiways which run through the aprons to the north of the runway). Taking a snapshot on the date of practical completion of the North Apron, 11 November 2002, there had therefore unquestionably been a substantial addition to the total apron area, which had increased from 10.85 hectares to 14.49 hectares. That snapshot does not accurately reflect the operational arrangements at the Aerodrome, certainly after CAA licensing commenced: part of the existing East Apron was re-designated as taxiway and the South Two Apron largely ceased to be used for aircraft parking, as it was too close to the runway and its surface was not compliant with CAA standards. Taking these factors into account, the total apronage was increased with the completion of the new North Apron to about 11.8 hectares, which nevertheless represented a significant addition to the facilities of the Aerodrome as a whole.
145. The subsequent termination of the Civil Enclave underlease, resulting in the closure of the South One Apron caused a further reduction of 2.57 hectares in the total apron space available to TAG. I do not think it is right to discount this area entirely when considering the availability of aprons as the South One Apron remained in use for a time by BAE in connection with a shuttle service it operated for its own staff.
146. Mr Village urged that the relevant comparison for the purpose of assessing the substantiality of an addition was between the total apronage available at the Aerodrome as a whole before the alteration and after it; in other words, the net increase. He suggested that certain areas of taxiway could have been used as aprons before the construction of the North Apron (there was no evidence that they had been) and that other areas ceased to be used as aprons after November 2002. This prodigious exercise (which Mr Village described as a “fair assessment of the “before” and “after” positions”) appeared to be unprincipled (areas which could have been used as aprons, but were not in fact so used, were counted as aprons in the “before” but not in the “after” analysis) but it did result in a net reduction in the total apron area despite the construction of the new 4.68 hectare North Apron.
147. Mr Village’s comparison of the usage of areas as aprons before and after the completion of the North Apron is not consistent with TAG’s own drawing showing the areas declared as aprons in the CAA’s Aerodrome Information Publication current on 31 December 2002 after completion of the North Apron. More importantly it illustrates the obvious proposition that the utilisation of space at an aerodrome is a complex matter and that the same area may be suitable for a number of different uses without the need for any works of alteration. An apron may be assigned for use in connection with engineering purposes, while what is a taxiway or runway one day may later be re-designated an apron (as occurred at Plymouth Airport: see ex p. Plymouth City Airport Ltd at [6]).
148. The question for the Tribunal is whether there has been a substantial addition to, or alteration of, the Aerodrome apron, but in answering that question I do not accept that it is correct to focus exclusively on the net area dedicated to apron use before and after completion of the relevant works. The relationship of the alteration to what had previously been present on its immediate site cannot be left out of account, and is likely to be decisive, especially where a particular facility has been moved from one side of the Aerodrome to the other, thereby potentially exposing different neighbouring properties to the physical effects and consequent financial loss for which the Act provides compensation. Similar considerations to those discussed in paragraph 139 above in relation to runway extension are equally applicable in the context of additions to the apron. Functional considerations are also relevant, and the North Apron was designed to accommodate large modern aircraft which the Civil Enclave, with its restricted entrances and cramped layout, could not handle. When constructed, the North Apron was clearly a substantial addition in its own right, looked at in the context of the Aerodrome as a whole or of its own immediate location. I do not consider that its substance diminished as a result of TAG’s operational decisions over time to reduce the use of other areas as aprons.
149. It is even clearer that the new North Apron was a substantial alteration: it brought an area, the greater part of which had not previously been apron, into use for that purpose; it provided a large, regular expanse, better located and capable of much more convenient operation than the areas it came to replace; and it was compatible with CAA standards, where the southern aprons were not, and had no prospect of being made, compatible.
150. I therefore find that there was a substantial addition to, or alteration of, an apron within the meaning of the first part of section 9(6)(b).
Apron alterations - purpose
151. It is next necessary to consider the second essential aspect of section 9(6)(b), namely whether the purpose or main purpose of the apron alterations was the provision of facilities for a greater number of aircraft. This too was the subject of considerable disagreement and a substantial part of the evidence was directed to it.
152. The claimants’ general case is that the purpose of the alterations as a whole, and the apron alterations in particular, was to enable the Aerodrome to continue in operation and that without them it would have closed. Without TAG’s willingness to acquire the lease, which was conditional on securing planning permission to transform the infrastructure of the Aerodrome, no CAA licence would have been available and there would have been no significant flying after the end of MoD regulation originally due in December 2000. The object of each phase of the work was therefore to provide facilities for a greater number of aircraft than would otherwise have been able to use the Aerodrome had those facilities not been provided.
153. TAG’s general approach to the question of the purpose of the works starts from a different position. Focussing on the explanation of section 9(6)(b) provided by Neuberger LJ in Brunt (see paragraph 32 above) TAG suggests that the Tribunal should identify the purpose of the alterations by comparing the “throughput potential” of the Aerodrome (i.e. its capacity to handle air traffic movements) before the works were undertaken with its capacity after the works, without paying much regard to the effect of the change in licensing. The stress, in TAG’s submission, should be on potential. If the works did not contribute to an increase in throughput potential it cannot have been their main purpose to provide facilities for a greater number of aircraft. Historically the Aerodrome had accommodated more than 38,000 ATMs per year at the time of the Empire Test Pilot School in the 1960s and TAG’s own 2007 capacity studies showed a theoretical limit in excess of 100,000 ATMs per year before any of the later phases of work were undertaken. The limit placed on its operations by the Local Plan and the October 2000 outline planning permission was 28,000 ATMs per year and when it built the North Apron and Hangar One TAG was content with that limit and had no immediate expectation that it would be exceeded. TAG’s business model was not driven by volume but by quality, and it did not judge the success of its project to create the most successful business airport in Europe by the number of aircraft it handled each year.
154. The question whether the main purpose of the apron alterations was the provision of facilities for a greater number of aircraft is to be answered “relatively objectively” (in the sense explained by Neuberger LJ in Brunt at paragraph 51): whatever an operator’s subjective intention for carrying out alterations the “purpose” of those alterations must be taken to be the “objective anticipated consequence” of that intention. A great deal of evidence was given by Ms Bartaby and Mr O’Reilly (with support from Mr Rhodes) explaining TAG’s business model, and its focus on timeliness and quality rather than on volume, with a view to the creation of a world class business aviation facility attracting the best, most advanced, quietest and safest business aviation aircraft; I accept all of that evidence, and having visited the Aerodrome and observed its operations, I appreciate how TAG’s business model has affected the design of its facilities. Nevertheless detailed evidence of TAG’s thinking seems to me to be largely beside the point, although as Neuberger LJ explained in Brunt, a competent operator’s subjective thinking is relevant to an assessment of the objective result of its actions. I accept that what matters is the Aerodrome’s capacity for business aviation, operating on different principles and with much more flexible procedures than a commercial airport, but I do not believe it necessary to consider TAG’s style of operation in further detail.
155. The analysis of the Aerodrome’s capacity is made more difficult in this case because of the change in regulatory regime from MoD to CAA supervision. In Brunt Neuberger LJ explained, at paragraph 36, that “the underlying assumption of s. 9 is that an aerodrome’s fundamental present capacity is to be determined by reference to its runway or runways”. But runways (and aprons) operate in a regulatory context which, as these cases illustrate, can have a critical impact on their capacity.
156. Before 1 January 2003 the capacity of the Aerodrome to support aircraft movements was assessed by reference to the standards of the MoD, but the purpose of the works, especially in their early phases, was to adapt the Aerodrome for use under the more stringent CAA regime. The rules changed so significantly that the Civil Enclave could no longer have continued to operate using the South Aprons, nor for planning reasons could replacement facilities have been constructed south of the runway. TAG therefore argues that the “main purpose” of the works it undertook in 2001 and 2002 was to replace the Civil Enclave with new high quality facilities, rather than to increase the capacity of the Aerodrome. For their part the claimants say that without the works there would have been no CAA licence and no continuation of flying, so that the main purpose of the alterations was to provide facilities for a greater number of aircraft than the negligible numbers which would have been capable of using Farnborough had the works not been carried out.
157. The evidence tends to support the factual premise of the claimants’ case. When the MoD sought expressions of interest in the acquisition of Farnborough in 1997, TAG was the only viable bidder interested in its long term operation as a base for significant civil aviation. There was certainly a strong government desire to retain Farnborough as a major business airport, but it required an operator. In July 1998 the MoD informed the inspector conducting the Local Plan Inquiry that all bidders, other than TAG, were either fronted by a developer, or wanted the flexibility to cross-subsidise the required improvements at the Aerodrome by undertaking development projects on parts of the site. These proposals were considered to be unacceptable but the inspector was warned that if TAG did not sign the proposed lease there was “no guarantee that a suitable operator will step forward to take their place”. At ministerial level the MoD warned the Department of Transport in July 1999 that if a CAA licence was not obtained “there is a real possibility that Farnborough will shut at the end of 2000”. In February 2000, at a time when TAG’s owner had declined to approve further investment in the Aerodrome after encountering planning difficulties, a briefing paper prepared for ministers by Defence Estates warned that “crucial decisions on investment in infrastructure essential if we are to keep the aerodrome open for flying after December 2000 are required later this month (at the latest)”. The importance of maintaining TAG’s involvement was also stressed to Ministers:
“There is no reason to believe (given the extensive international campaign mounted when TAG were selected) that an alternative operator would be found were TAG not to proceed.”
158. Against these contemporaneous assessments of the chances of the Aerodrome remaining operational without the implementation of TAG’s proposals for a lengthened runway and enhanced apron and hangars, must be considered the national significance of Farnborough and the continuing government policy that it should be kept open to support business aviation and to guarantee continuance of the Airshow. Mr Rhodes, TAG’s expert witness on planning issues, gave convincing evidence in support of his view that it was inconceivable that the vital infrastructure at Farnborough would have been allowed to close. Since the 1985 White Paper the policy emphasis had been on making use of existing aviation facilities to meet ever growing demand; there was no alternative UK venue for the Airshow, and the possibility that it might go abroad would have been fiercely resisted within government and industry. Convincing though Mr Rhodes was, his evidence did not go on to explain how the future of Farnborough would have been secured without TAG: his thesis was that something was bound to turn up, but in what form and at whose expense was much less apparent. Ms Bartaby took a different view. She believed that the MoD had no appetite to continue paying for the Aerodrome and wished to maximise the return it received for the site; if TAG had not taken the lease she thought that the MoD would have closed the site and marketed it for residential development.
159. It seems clear on the evidence that in the period from 1997 until the CAA licence was obtained in December 2002, the future of the Aerodrome was in the balance and that without TAG’s programme of investment there was a very real likelihood that the scale of aviation would have reduced significantly. Government policy would have prevented the use of the site for an alternative purpose, but with the MoD having no operational requirement for the facility (and no willingness to pay for it to remain open or to continue regulating it), and there being no other acceptable commercial interest in undertaking the investment necessary to secure a CAA licence, a period of uncertainty would have followed a failure to find a satisfactory partner in 1997. On balance it seems to me unlikely that the number of aircraft using the Aerodrome would have increased above the levels achieved by BAE and TAG at the end of the 1990s, at about 11,000 to 13,000 ATMs per year, and it may have fallen significantly from those levels. No more elaborate counter-factual assessment of the future without TAG can safely be made on the evidence I have heard.
160. Despite being prepared to go so far with the claimants, I do not accept the broadest way in which they present their case; this assumes a comparison between the capacity of the Aerodrome under the CAA licensing regime without the enabling works and North Apron having been completed and its capacity under the same regime with the benefit of those improvements. I accept that without the works leading to the grant of the CAA licence there would probably have been little flying after 30 December 2002. Nevertheless (although I am unpersuaded by the detail of TAG’s assessment of capacity) Mr Village is clearly correct in his submission that the relevant comparison must in principle be between the capacity of the Aerodrome in the period before the works were undertaken and its capacity in the period after, rather than between the prospective capacity of the Aerodrome for the future with and without the works. Given the regulatory change which occurred after completion of the works that might seem a comparison between apples and pears (or bicycles and business jets) but the purpose of the 1973 Act is to provide compensation for diminution in the value of property brought about by physical factors caused by the use of new or altered public works. It does not seem to me to be consistent with that purpose for compensation potentially to be available where alterations have simply preserved the status quo, without any environmental deterioration, as might be the case if work was undertaken simply to comply with new mandatory safety requirements.
161. My preferred approach seems to me to be consistent with Neuberger LJ’s explanation of the thinking behind the statutory provisions in paragraphs 34 to 36 of Brunt. It dictates that in addressing whether the works increased the capacity of the Aerodrome by providing facilities for a greater number of aircraft it is necessary to consider the number of aircraft capable of using the Aerodrome before and after the completion of the alterations, in each case taking into account, in a realistic way, the extent to which that use could have been intensified and numbers increased without additional runway or apron alterations.
162. In making this comparison I do not consider that the historic capacity of the Aerodrome to service more than 38,000 ATMs at the time of the Empire Test Pilot School is a relevant starting point. The nature of that activity was very different and the Aerodrome was operated in a different manner and with three runways. There was no evidence that such past performance was a reliable guide to notional current capacity. Nor do I consider that the abnormal arrangements operated during the Airshow, an intensive two week period of 1,550 to 2,000 ATMs to which normal planning controls do not apply, provide a reliable guide.
163. The evidence of the realistic capacity of the Aerodrome before the commencement of the enabling works in 2001 was limited. Ms Bartaby gave rather general evidence that, in her view, before TAG’s involvement the Aerodrome held more than sufficient apronage for parking as many aircraft as TAG was likely to require. Although she has considerable expertise Ms Bartaby was not called as an expert witness and her assessment was not supported by any detail which could have been the subject of proper scrutiny. TAG could have produced data from the period of its management of the Civil Enclave and subsequently which would have enabled the experts to undertake a capacity modelling exercise (it undertook such an exercise for its own purposes in 2007) but it chose not to do so. Mr Titterington undertook some calculations and estimated that, including the Civil Enclave, there was capacity for 53,000 ATMs per year. That level of activity is close to the level which would be achieved if the intensity of use during the Airshow was maintained for 7 days a week, 52 weeks a year. Mr Titterington’s calculations were the subject of sustained cross examination by Mr Wald, during which Mr Titterington acknowledged that they were based on assumptions of some very high utilisation levels and assumed the use of areas not in fact used as aprons. They were also based on what I consider to have been an unrealistic estimate of the average period of occupancy of the available aircraft stands. He considered that short stays (other than the most transient) would be of 3 or 4 hours duration but his assumed average stay was only 5 hours, which appeared to take no account of Mr O’Reilly’s evidence that numerous aircraft remained at their stands for days or weeks. When carrying out his calculations Mr Titterington had not asked for or been provided with actual data for 2000 and he agreed that his approach was not modelled on TAG’s style of operation. On examination Mr Titterington’s estimate of “throughput potential” appeared unreliable, theoretical and detached from reality and I felt unable to place any reliance on it.
164. Rather than adopt a theoretical assessment of the maximum number of aircraft movements which could be accommodated at the Aerodrome before the alterations I consider that a more relevant and reliable yardstick is what was actually achieved under the management of competent operators, BAE, through its subsidiary Farnborough Business Aviation Ltd, and TAG itself. By 1998 just over 12,000 ATMs per year were being recorded. In 2000 TAG achieved 13,363 ATMs. There was also capacity for some military operations, but after the Aerodrome was declared surplus to MoD requirements in 1994 these declined to an insignificant level by the end of the decade. I do not think it is appropriate simply to aggregate the capacity of the former military areas with the Civil Enclave on the assumption that both could have been used to their full potential either as separate enterprises or in combination. That was never achieved in practice as civil aviation increased while military flights declined. The aprons on the north side of the runway were cramped (particularly the Diamond Way Apron) and dispersed; they were not well suited to an efficient and convenient civil aviation operation (and certainly not to the dedicated business service TAG prides itself on delivering in which speed of transit through the aerodrome is put at a premium and the capacity to accommodate the largest business jets is regarded as critical). A single operation combining use of aprons on both sides of the runway would also raise serious safety issues (Mr Titterington explained that crossing the runway was “frowned upon severely” by the CAA).
165. Ms Bartaby described the Aerodrome before TAG’s involvement as being in a dilapidated condition, and far below the standard required for operation under CAA licensing. I am satisfied that it was under-utilised in comparison with its theoretical capacity because of the limitations of its facilities, in particular the facilities of the Civil Enclave. It could only hope to achieve its theoretical potential by undertaking a programme of works to secure a CAA licence (which required the runway extension and apron alterations). In my judgment it is unreal to suggest that an airport operator could have achieved the levels of business which TAG intended to achieve within the first 5 to 10 years of taking over the Aerodrome without major infrastructure investment, including work to improve the quality of the aprons and their proximity to passenger facilities and hangars.
166. A contemporaneous assessment of TAG’s subjective intentions can be found in a confidential Business Development Plan drawn up in the second quarter of 2001 and used by TAG to attract project finance for the phased development of the Aerodrome. The document is lengthy and sets out TAG’s commitment to transforming the Aerodrome into the premier business aviation airport in Europe. ATM growth rates since 1997 were highlighted at between 9% and 16% from 1997 to 2000 and it was explained that “TAG anticipates continued volume increases at or above historical growth rates”. In a section headed “Financing Prospectus” the “rapid growth in the use of private aircraft to meet the travel requirements of companies and wealthy individuals” and the opportunity to develop facilities at Farnborough to serve that growth were identified. The following extracts provide a flavour of the document in which the purpose of the fund raising was explained and the project persuasively promoted:
“Significant airfield infrastructure improvements are required to meet the safety standards required by the CAA and to accommodate the projected growth of the business.”
“Over the next few years, additional investment in hangar, terminal, and office facilities will be required to support the increase in the number of operations, now growing at an annual rate of approximately ten percent.”
“The rate of traffic growth confirms TAG’s strategy that Farnborough represents a unique development proposition. Demand for convenient access to London by business aircraft will continue to increase in an environment of fixed capacity and limited competition. While Farnborough is a long term investment requiring patience, TAG is confident that the project will meet or exceed forecast predictions.”
167. TAG’s initial aspiration was that by 2006 it would reach the 28,000 ATMs per year permitted by the planning permission. It had acquiesced in that restriction expressly on the basis that it would be kept under review, and it is clear from its project financing document that it was intent on creating facilities to meet future growth. It does not seem to me to be possible to sub-divide its intentions in carrying out the works necessary to achieve the permitted level of operation into quality, efficiency or scale. Its intention in constructing the wide expanse of the new North Apron was an inextricable part of its overall purpose of operating a premium business airport serving up to 28,000 ATMs in the short to medium term and growing thereafter. The provision of facilities for a greater number of aircraft than could realistically be accommodated utilising the aprons available before 2002 was fundamental to its decision to construct the North Apron.
168. I am therefore satisfied that the construction of the North Apron was a substantial addition to, or alteration of, an apron, and that its purpose or main purpose was the provision of facilities for a greater number of aircraft.
169. Before leaving the subject of works to the apron I should refer to an inconclusive debate which bobbed up from time to time during the hearing. At a late stage in the exchange of evidence it was suggested by Mr Forbes on behalf of the claimants that the aprons may have been strengthened (and hence altered) as part of the initial phases of work. Ms Bartaby explained that this was not so but had greater difficulty in reconciling that evidence with a comparison between a pavement evaluation study undertaken for TAG in March 2000 and the characteristics of the runways and aprons recorded in the CAA’s AIP publication for the Aerodrome after completion of the works. I am quite sure that Ms Bartaby gave truthful evidence when she said that no strengthening had taken place, but how that is consistent with what the technical data appears to suggest is a puzzle. The issue was not pleaded and emerged too late for either party to deal with it satisfactorily and I therefore simply record that the relevant evidence does not enable me to reach any firm conclusion on the point.
Hangar One
170. Through the evidence of their experts, Mr Matthews and Mr Forbes, the claimants sought to rely on the construction of Hangar One as a further addition to the Aerodrome’s apron, on the basis that it should be regarded as a covered apron; Mr Forbes suggested that “it would be ironic if a defendant was able to circumvent the Act by covering any expansion to an apron”. I need spend little time on that suggestion. An apron is an open and uncovered area of hard standing for the parking, loading and unloading of aircraft. A hangar is a building. A hangar cannot be an apron because an apron is an uncovered space. The fact that a hangar is used for the parking of aircraft, or for loading or unloading, does not make it an apron.
171. I therefore determine issue 4 in the Johnston proceedings in the claimants favour and find that, to the extent that their claims are based on the runway extension and the creation of the North Apron (but not Hangar One), they involve “runway or apron alterations” within the meaning of section 9(6) of the Act.
Johnston issue 5(a) - What was the “relevant date” under Part I of the Act for the purposes of the claims in the Johnston proceedings?
Johnston issue (1) - Were the notices of reference delivered in time or are the claims barred by limitation?
172. The answer to both these questions follows from my conclusions on the previous issue and the substantially uncontested facts. In a case involving alterations to public works, where it is said that depreciation in the value of property would not have occurred but for the alterations, the relevant date is the date when the public works were first used after completion of the alterations (section 9(2), 1973 Act). The limitation period for claims under the Act is six years from the first claim date, which is the anniversary of the relevant date (section 19(2A, 1973 Act).
173. The runway works as a whole commenced in July 2001 and the construction contract was declared practically complete on 10 June 2002. The last element of the work was resurfacing, which was completed over the weekend of 1-4 June 2002. The revised runway thresholds, which the extension was designed to facilitate, were first observed from 11 November 2001, and the runway itself remained in operation (except at weekends) throughout the works. The relevant date for a claim based solely on the runway extension is therefore not later than 10 June 2002; it would be significantly earlier if the first use of the extension and starter strip, rather than the resurfacing (which had to be redone after a period of use) is taken, but I will assume the later date. As a result, the earliest date on which such a claim could be brought, (the first claim day as defined in section 3(2) of the 1973 Act) was 11 June 2003 and the six year limitation period provided by section 9 of the Limitation Act 1980 expired on 11 June 2009.
174. The North Apron was in use in time for the start of the 2002 Airshow on 22 July 2002, although part of a road providing access to the apron for passengers was not then complete. The apron was certified as having been practically complete on 11 October 2002. In the absence of evidence of what, if any, works were carried out between those two dates I find that the date on which the North Apron was complete and first used, that is, the relevant date, was 11 October 2002. The limitation period for bringing claims for compensation under the 1973 Act based on the construction of the North Apron therefore expired on 12 October 2009.
175. Had the construction of Hangar One been material to the references I would have found on the evidence that the relevant date was 11 December 2002 on which date the new hangar was “declared airside” and the first paying aircraft was accommodated in it. There was no evidence of earlier use of the hangar after it was certified as practically complete on 29 November 2002.
176. It was explained to me by Mr Wald that, in preparing their case, the claimants had not investigated in any detail the dates of completion of the works carried out before 1 January 2003 which was the relevant date for which they contended. That was no doubt a reflection of the reality that without success on the estoppel issue any relevant date in 2002 or earlier would be fatal to their claims. Despite that being the claimants’ position they were unwilling to make any admissions on the dates of completion of different elements of the work, even after receiving the witness statements of Ms Bartaby. In any event it has been necessary to establish the relevant date with some precision because of its potential significance on the question of reliance for those claimants who may have been unaware of the representation, or even of the potential to bring a claim, until after the expiry of the relevant limitation periods. For its part TAG was content to proceed on the basis that the relevant works carried out in 2001 and 2002 should be regarded as a package for the purpose of establishing the relevant date and that the date of completion and first use of the latest of the elements should be regarded as the relevant date for the Johnston claims as a whole. I will proceed on that basis on the strength of TAG’s concession, which is practical and constructive. The relevant date for the Johnston references was therefore 11 October 2002. In another case (including potentially in the Dandy proceedings) it may be relevant to distinguish between geographically or functionally discrete elements of a programme of work when considering the application of the statutory limitation period.
177. All of the Johnston notices of references were hand-delivered to the offices of the Tribunal by Mr Hunt on 31 December 2009. It follows that if TAG is entitled to rely on the expiry of the limitation period on 12 October 2009 all of the Johnston references must be dismissed. Whether TAG is entitled to rely on its limitation defence is the next issue.
Johnston issue (5)(b) - If the claims would otherwise be barred by limitation, is TAG estopped from denying that 1 January 2003 was the “relevant date”?
178. In their statement of case the Johnston claimants adopted the language of Ms Bartaby’s section 15 statement to plead what they asserted was the relevant date for the purpose of their claims: as there was no clear date in 2001 and 2002 when the works had been completed, and since the works were intended to secure a CAA licence, “the date of the grant of this licence can be seen as the culmination of those works and, adopting a common-sense and pragmatic approach, this may be regarded as the relevant date…. The date was 1st January 2003.” In response TAG pleaded that any runway alterations within the meaning of the Act had been completed and first used during June 2002, and that any apron alterations had been completed and first used during July 2002. In consequence the Johnston references, all of which had been made after July 2009, were said to be out of time.
179. In their points of reply the Johnston claimants assert that if 1st January 2003 was not the relevant date TAG is nonetheless “estopped from relying upon, and/or has waived the right to rely upon, a different relevant date, both generally and for the purposes of raising a limitation defence.” In arriving at the conclusion that 1st January 2003 was the relevant date for the purpose of their claims the claimants say that they relied on two statements made by TAG, namely, the letter of 17 February 2003 and its enclosure from Ms Bartaby to Dr Appleton and the statement she had provided on the same date to Lloyd Williams in response to their request under section 15 of the 1973 Act. Both had described the runway and apron works and had gone on to explain that:
“These works were completed during 2002. There is no clear date as various elements have been phased in. The use of the existing runway did not cease whilst works took place. As the works were designed to achieve a CAA licence, the date of this licence may be considered to be the relevant date. This was 1 January 2003.”
180. In the course of submissions Mr Wald sought to broaden the scope of the estoppel issue and to assert that, as well as being prevented from disputing the relevant date,TAG ought also to be estopped from a range of defences including compliance with the requirements of section 3 in relation to the content of the claim notices. I will defer consideration of those additional suggestions and confine myself at this stage to the availability of estoppel as an answer to the defence of limitation. Mr Wald also suggested that Ms Bartaby and Mr Scott had agreed that the relevant date was 1 January 2003 and that Mr Scott had then been acting “on behalf of all potential claimants”. Mr Wald relied on TAG’s 2009 board minutes in support of the suggested agreement as these showed that TAG itself regarded 31 December 2009 as the long stop date for potential claims. I have already found that there was no such agreement as Mr Wald suggested (see paragraph 106 above) and in any event Mr Scott had no authority to reach agreement on behalf of any of the claimants. The reference in TAG’s board minutes to 31 December 2009 provides no support for the suggested agreement, and was no more than a reflection of the contents of the numerous claim notices which had been received each of which specified a relevant date of 1 January 2003. The board minutes themselves are irrelevant to the claimants’ estoppel case as they are internal documents to which none of the claimants had access.
181. Mr Wald characterised the claimants’ case as being based on an estoppel by representation. He did not argue a case on any alternative basis, such as estoppel by convention. For the purpose of these proceedings the elements which must be established to create an estoppel by representation can be summarised as comprising:
(a) a statement or other conduct which amounts to a clear and unambiguous representation of fact;
(b) communication of that representation to the claimants;
(c) an alteration of their position by the claimants in reliance on the representation;
(d) prejudice to the claimants which would make it unfair for the representor to be permitted to contradict the representation.
The claimants’ case on estoppel
182. On behalf of the claimants Mr Wald and Mr Burton described the estoppel issue as “straightforward”. They submitted that the two documents on which they rely contained a clear statement of fact (that the relevant date was 1 January 2003), that the claimants had relied on that statement to their disadvantage, and that TAG was therefore estopped from denying that the statement was correct and that the relevant date was indeed 1 January 2003. TAG had been under a statutory duty, imposed by section 15(1) of the 1973 Act, to keep records and to furnish a statement of the date on which the Aerodrome was first used after completion of the alterations. That duty had been complied with, with 1 January 2003 being the date identified, and the statement had not subsequently been withdrawn or amended before it was too late for the damage done to the claimants to be rectified. Herbert Smith (as TAG’s solicitors were then known) had contested the availability of claims in correspondence from receipt of the first claim notices in 2004 until after the expiry of the limitation period, but at no time until service of TAG’s statement of case had they suggested that the relevant date was not 1 January 2003.
Were the words clear and unambiguous?
183. In response to the alleged estoppel Mr Village QC took a range of points, the first of which was that the statement on which the defence of estoppel was based was ambiguous. To provide the basis of an estoppel by representation the statement relied on must have been clear and unequivocal, so the representee will not succeed if another construction of the statement is reasonably available. For this purpose “far-fetched or strained, but still possible, interpretations” may be disregarded (per Lord Hailsham LC in Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Ltd [1972] AC 741 at 756E-F).
184. Mr Village first pointed out that section 15(1) did not require the responsible authority to state the relevant date, but instead required it to specify the date on which the public works were first used after completion of the alterations. It was then for the recipient of the information, not the supplier, to deduce from it the earliest and latest dates for claiming compensation. Assuming the duty was applicable, it had been complied with by Ms Bartaby, who had specified that the works she described “were completed during 2002”, and that the runway had not been out of use while the works were carried out. Mr Village submitted that the claimants’ suggested reading of the statement could not be accepted, as it would make this information redundant.
185. Ms Bartaby’s statement was sent to Lloyd Williams, who held themselves out as experts in compensation matters. Mr Village submitted that the meaning of the language should therefore be assessed on the assumption that the requirements of the Act were fully understood by the reader. Lloyd Williams, or any informed recipient of the information, should have known that section 15(1) created no duty to state the relevant date. The Act itself confers no significance at all on the granting of a CAA licence so the fact that “the works were designed to achieve a CAA licence” was of no consequence to the identification of the relevant date. Armed with that level of understanding the informed reader should therefore have appreciated that when Ms Bartaby said the date of the CAA licence “may be considered to be the relevant date” she was not purporting to comply with section 15(1) but was speculating about the proper application of the statutory provisions to the complex factual situation which she had described in the rest of her statement.
186. I accept that the task of interpreting Ms Bartaby’s statement should be undertaken on the assumption that the reader has an informed understanding of the workings of the 1973 Act. The information provided to Lloyd Williams was provided in response to a formal statutory request made by a professional firm holding themselves out as experts. Although Ms Bartaby also sent the same information to Dr Appleton, and appreciated that it would be conveyed to other local residents, it was reasonably to be expected that anyone contemplating making a claim for compensation would seek professional advice. It is also relevant that the claimants’ case is that they relied on Ms Bartaby’s statement up to the expiry of the limitation period in 2009. During that period they sought advice on the significance of the statement from experienced counsel (not Mr Wald or Mr Burton). The advice was not concerned with questions of limitation, but rather with the identification of the relevant date and the strength of Herbert Smith’s arguments that the Act did not apply at all. None of the claimants relied on their own understanding of the statement, but rather on the advice which they received from their professional advisers. I will consider the effect which that has on the claimants’ case on reliance later, but at this stage I agree with Mr Village that the statement must be understood as it would have been by someone familiar with the Act.
187. On the other hand I do not think it would be correct to assume that the reader of Ms Bartaby’s statement had any detailed appreciation of the facts beyond those provided in the statement itself. It was accepted by Mr Marks that he took a close interest in what was going on at the Aerodrome, and visited it during the works, but his knowledge was clearly limited to what he could observe or what was published. He was aware that the runway thresholds had been extended by the end of 2001 but he did not know when the lighting and other elements had been completed. He could see work on the construction of Hangar One from the road, but did not know when it had been completed, nor could he have seen the state of the works to the North Apron. He did know that no works took place in the two weeks over Christmas and New Year 2001-02. Neither Mr Marks or the other claimants, nor Lloyd Williams, had any reliable source of more detailed information on when the works had been completed and first brought into use and they naturally relied on Ms Bartaby for that information.
188. Nor do I think it is correct for the purpose of interpreting the statement to assume that the reader was aware of the correspondence and conversations which had taken place between Ms Bartaby and Mr Scott. Mr Scott had not acted for any of the claimants and his efforts were not generally known.
189. It therefore seems to me to be appropriate to read the statement Ms Bartaby sent to Lloyd Williams and Dr Appleton as it would be read by an informed reader with the benefit of professional advice, but with only a rather general and incomplete understanding of the facts. How then would such a reader understand the document, and what message, if any, would its clearly have conveyed to them?
190. Addressing the content of the statement itself Mr Village pointed out that, in response to the specific request in Lloyd Williams’ questionnaire to state the relevant date, Ms Bartaby had not provided any date but had referred the reader to her own statement. That, he submitted, should have alerted the reader to her inability to provide a clear and definitive answer, capable of being relied on, and was an important context for Ms Bartaby’s subsequent use of the word “may”. I do not accept that. The position was certainly more complicated than the standard form of questionnaire anticipated, as was obvious from the statement Ms Bartaby provided, but in the light of that statement I do not think the omission to include a specific date in the completed questionnaire would colour the way in which her response as a whole would be understood by a reasonable reader. In her covering letter she had pointed out that “the situation at Farnborough does not easily lend itself to completion of the form without additional information” but the apparent purpose of the accompanying statement was to provide the additional material required to answer Lloyd Williams’ questions fully and helpfully.
191. As Mr Village submitted, the grant of a CAA licence was not and did not purport to be confirmation of the first use of the runway following completion of the works. Why then was it referred to at all by Ms Bartaby? Although not the function of the licence Mr Marks said that the date on which it had taken effect appeared to him to be a rational date to select as the relevant date as it amounted in effect to independent verification that the works as a whole were capable of being used. I accept that that is how it would have appeared to an informed reader who understood the difficulty created by the need to provide a relevant date for works which had extended over a period of 18 months during which the runway had remained operational. The informed reader would have understood that there would either have to be different relevant dates for different aspects of the programme of works or a single date would need to be selected as being applicable to the entire project. The fact that Ms Bartaby explained the difficulty (“there is no clear date as the works have been phased in”) before suggesting a single date by reference to the grant of the CAA licence which “the works were designed to achieve” would indeed appear a rational and pragmatic solution to the problem which would leave the reader in no doubt over what was being proposed.
192. Mr Village suggested that the words “may be considered to be the relevant date” were “pregnant with ambiguity and lack of commitment” and would have been expressed more clearly if Ms Bartaby had been intending to provide a specific date. I do not think that is a fair reading, and I do not consider that the availability of alternative formulations is material. Nor do I give any weight to Ms Bartaby’s suggestion that she was being “deliberately ambiguous”, as she said at one point in her oral evidence and as Mr Village subsequently emphasised. Ms Bartaby gave the impression of being straightforward and open in her dealings with local residents and other professionals; where matters appeared unclear she said so, but the purpose of her statement was to provide as clear an answer as she was able to do in the circumstances. Her understandable discomfort at the debate swirling around her words more than twelve years after they were written makes me very reluctant to place reliance on her subjective reconstruction from the witness box of what she had then intended.
193. Contrary to Mr Village’s submission I do not accept that the statement that the date of the licence “may be considered to be the relevant date” allows the reader reasonably to interpolate the words “or may not” or that Ms Bartaby’s statement was consistent with some other date being taken to be the relevant date. The words are not reasonably to be understood as being used in a speculative or conditional sense i.e. as meaning that either the date of the licence or some other date may be considered to be the relevant date, depending on a judgment to be made by someone else. Nor was the statement consistent with agnosticism. That would be contrary to the purpose of a statement given under section 15, which is for the responsible authority to provide certainty.
194. I consider that the statutory function of the statement sheds important light on its interpretation. Both in the completed Lloyd Williams questionnaire and in her letter to Dr Appleton of 17 February 2003 Ms Bartaby had identified TAG as the responsible authority (“the responsible body”; “the relevant organisation”) for the purpose of the submission of claims. She understood, and an informed reader of her statement would understand, that responsibility for identifying the date which was the relevant date therefore fell on TAG. It was apparent from her statement, with its accompanying plans, that Ms Bartaby took that responsibility seriously on behalf of TAG. In that context I consider that the only sense in which Ms Bartaby’s statement can reasonably be understood is as an attempt to resolve the ambiguity created by the works having been phased in while the Aerodrome remained continuously in use by providing a clear date, with a rational justification. The statement that the date of the CAA licence “may be considered to be the relevant date” was permissive rather than conditional or conjectural.
195. I find it more difficult to regard the statement as a simple and straightforward statement of fact as Mr Wald suggested. It was clearly not a statement that the first use of the Aerodrome after completion of the works had taken place on 1 January 2003. Ms Bartaby made it clear that she was unable to provide such a date because the runway had remained continuously in use and because the works had been phased in on different dates. I have previously described the statement as permissive, because it would have been understood by a reasonable reader as TAG’s suggested solution to the difficulty of specifying the relevant date. It was a proposal, and implicit in that proposal was a statement of TAG’s willingness (at that time) that any claims which were to be brought could properly proceed on the basis that 1 January 2003 was the relevant date.
196. The statement provided a working assumption on which the claimants then acted. When claim forms started to arrive on Ms Bartaby’s desk on 5 January 2004, each including the statement that the relevant date was 1 January 2003, it would therefore have been obvious to a reasonable recipient with knowledge of the relevant background, and it was obvious to Ms Bartaby, that the claimants were proceeding on the same basis as she had proposed in her own statement to Dr Appleton and Lloyd Williams less than 12 months previously.
197. It does not seem to me to matter that the date identified by Ms Bartaby was unlikely to be the relevant date on a strict application of section 9(2)(b). I agree with Mr Village that it would have been obvious to Lloyd Williams, to Mr Marks and to any other reasonably informed reader that it was most improbable that the alterations described in the statement had in fact first come into use on 1 January 2003. What was important was to have a clear date (or dates, but Ms Bartaby did not offer separate dates for different elements). It was precisely because there was difficulty in being specific that Ms Bartaby had to resort to proposing a sensible proxy date, a working assumption capable of rational justification. Having indicated a willingness to proceed on the basis of a specific date, and that date having been adopted by the claimants in their notices of claim (each of which gave 1 January 2003 as the relevant date) Ms Bartaby had succeeded in providing the certainty which is the object of a request under section 15(1). Nevertheless, the only fact represented by the statement was, implicitly, that TAG was willing to proceed on that basis, but not that the date of completion and first use of the alterations was 1January 2003.
Was the representation communicated to the claimants?
198. It is next necessary to consider whether the representation that 1 January 2003 could be taken to be the relevant date was communicated to the claimants. Mr Village pointed out that in March 2003 Lloyd Williams had no clients, whether among the claimants or otherwise, and that Ms Bartaby’s statement was not made to the claimants, but to a surveyor who represented nobody. None of the claimants had subsequently sought clarification or confirmation of what had been said to Lloyd Williams. In addition, he submitted, Ms Bartaby had not known who the information might be passed on to. For those reasons, Mr Village submitted, “the umbrella of an estoppel” ought not to cover the claimants.
199. I do not accept these submissions (which would not in any event have applied to Dr Appleton). I am satisfied that Ms Bartaby’s statement was widely communicated to the claimants and others, as Ms Bartaby appreciated it would be. A representation may be made in circumstances where the representor intended or contemplated that the person to whom it was made would pass the information on to others who would act on it. Lloyd Williams specifically informed Ms Bartaby that they had been asked by several residents living to the east of the runway whether they might be able to bring a claim for compensation, and although she did not at that stage know the identity of those residents it must have been within her contemplation that clients of Lloyd Williams would be informed of her answers to its questionnaire.
200. In her oral evidence Ms Bartaby said that she wrote her statement for the benefit of any residents who might see it, in order to explain why the Act did not apply. I doubt that in 2003 Ms Bartaby’s views were as firm as she now recalls them to have been. She had read the relevant parts of the 1973 Act at the time of her discussions with Mr Scott but she did not seek legal advice until after claim notices began to be received. There is a marked divergence in tone between her statement in February 2003 and later statements made after receiving legal advice (for example, she was reported in the local press on 10 February 2004 as saying that: “It is our view that there is no substance to the claim”). On the basis of what she wrote to Dr Appleton and to Lloyd Williams and in her own file note of her discussion with Mr Scott in November 2002, I do not accept that by February 2003 she had formed the view that the prospective claims were unsustainable. In any event, what is important for the purpose of the estoppel issue is not what Ms Bartaby, or anyone else at TAG, thought, but what she said on TAG’s behalf and how her statement would reasonably be understood by someone aware of the background. What is also significant is Ms Bartaby’s appreciation, as the oral evidence I have already referred to confirms, that her response to the formal and informal requests for information which she received from Lloyd Williams and Dr Appleton was liable to come to the attention of other residents and to be relied on by them.
201. All of the claimants who gave oral evidence had believed for many years that the last date for making a claim for compensation was 31 December 2009. The significance of the 1 January 2003 date was discussed at FARA meetings and mentioned in FARA newsletters, and in at least one article in the local press. The significance of the six year limitation from the anniversary of this date also had wide circulation – even featuring in a leaflet distributed by a prospective Parliamentary candidate in July 2009.
202. Several claimants were aware specifically that TAG, through Ms Bartaby, was the source of the view that the relevant date was 1 January 2003. Mr Marks certainly knew that Ms Bartaby, with whom he had had prior dealings and whose integrity he respected, had provided the relevant information. Mr Milne, another FARA member, believed it likely that Ms Bartaby was referred to as the source of the information at FARA meetings which he had attended. I accept that evidence, which accords with that of Mr Morrison who recalled Ms Bartaby’s name being regularly mentioned at those meetings.
203. Not all claimants were members of FARA, and not all members attended meetings. Some claimants who gave evidence were unaware of the statement itself or that it was the basis of the timetable which they understood to be applicable. None of Mr Dandy, Mr Goodeve-Ballard, or Mr Adams, who first instructed Lloyd Williams in 2002, 2003 and February 2005 respectively, and who transferred their instructions to Mr Hunt in 2007, became aware of Ms Bartaby’s statement until (at the earliest) it was referred to by Mr Hunt in a letter to his clients on 26 November 2010. Mr Dragwidge, who did not instruct Mr Hunt until October 2009, similarly was unaware of Ms Bartaby’s letter until after his claim had been referred to the Tribunal.
204. None of the claimants who gave evidence had made enquiries or carried out any independent research of their own into the details of their claims. They had simply relied on the advice they had received from their advisers that the latest date by which a claim could be submitted was 31 December 2009. Although those advisers, Lloyd Williams and Mr Hunt, had been recommended to the claimants by FARA, the association’s members were no better equipped than others to form their own view. All of the claimants were dependent on their advisers who were certainly aware of the statements on which the estoppel is based. That is sufficient for the purpose of establishing communication with the claimants themselves.
Was the statement withdrawn?
205. TAG relied heavily on correspondence between its solicitors Herbert Smith and the representatives of the claimants in support of its submission that any representation by Ms Bartaby in her correspondence with Lloyd Williams and Dr Appleton had been withdrawn long before the expiry of the limitation period.
206. It was not disputed by the claimants that a representation of fact may be withdrawn, and that no estoppel would then be capable of being founded on it, but they did not accept that the section 15 statement was ever withdrawn. Mr Wald also submitted that it was not possible for the representation to be withdrawn in the cases of those claimants who had engaged Lloyd Williams’ services to serve claim notices, as they had already paid the surveyors an initial fee of £50 plus VAT, before the correspondence from Herbert Smith commenced. I dismiss that suggestion out of hand. The service of a claim notice in 2004 was not an act done in reliance on any representation about the relevant date, and the payment of a fee for that service was too trivial to render it unfair or unconscionable for TAG subsequently to rely on the defence of limitation.
207. Whether the representation was withdrawn turns on the effect of correspondence passing between professionals (or intended to be read with professional advice) which once again should be construed objectively. For that reason I did not find the cross examination of Mr Marks and Mr Hunt on their understanding of letters written by Herbert Smith to be particularly helpful when considering what information the letters convey. The letters speak for themselves and it was clearly appreciated by both witnesses that TAG, through its lawyers, was strenuously disputing the suggestion that the Act applied to the works carried out at the Aerodrome. If the representation was withdrawn the basis of the estoppel would evaporate; if it was not withdrawn it must then separately be considered whether the claimants continued to rely on it.
208. On 30 January 2004, Herbert Smith wrote to Lloyd Williams in response to the first batch of claim notices sent to TAG on 5 January. The letter stated that TAG “disputes all claims as submitted by you, and contends that no compensation is payable”. Any references to the Tribunal would be “vigorously defended” and the costs for which any claimant would be liable would be substantial. As Mr Village and Mr Tabachnik observed in their opening argument, this letter set the tone for subsequent correspondence, but it did not have anything specific to say about the basis of the claim, the relevant date or the statement provided to Lloyd Williams by Ms Bartaby in February the previous year.
209. The second letter relied upon by TAG was more specific. It was written to Mr Marks on 8 February 2005 at a time when he had been canvassing local residents in his capacity as Chairman of FARA informing them of the possibility of claims under the 1973 Act. Mr Marks had stated in his letter to residents that TAG “has already confirmed that the works undertaken on their site constitute what is known as a “scheme” under the terms of the Act”. This was “a crucial point because this confirmation is the key prerequisite of claims being lodged”. Herbert Smith’s letter of 8 February 2005 assumed that Mr Marks had been “referring to our client’s “s.15 Statement” dated 17 February 2003” (in fact the acknowledgement Mr Marks was referring to was contained in Ms Bartaby’s letter of 23 December 2002 to Dr Appleton). In any event Herbert Smith took issue with the suggestion that any concession or acknowledgement had been provided:
“We should make it clear that the provision of a s.15 Statement by our client does not mean that a scheme exists that would give a right to compensation under the 1973 Act. As has already been made clear to Lloyd Williams, our client firmly maintains that no such scheme exists and indeed that the 1973 Act itself is not relevant to the works that were carried out at all.
The statement provided was intended to be explanatory. By way of example, the statement explains that the works have shortened the take-off and landing distances (rather than lengthening them). It should be evident from the details provided that any claim for compensation will not be sustainable. We actively recommend that any would-be claimant takes independent legal advice on this point at the earliest opportunity.”
That letter does seem to me to take the matter further by beginning to undermine the status of the statement provided by Ms Bartaby. The statement was not to be taken as acceptance that a “scheme” existed. Ms Bartaby had previously confirmed to Dr Appleton that TAG accepted there was a scheme for the purpose of the Act, but that acceptance was now clearly being withdrawn. The letter also cast Ms Bartaby’s response to Lloyd Williams’ questionnaire in a different light: it had been intended to be “explanatory” and was now said to be a demonstration of why there was no basis for bringing claims at all. It might be suggested that by describing the document as “a s.15 Statement” at all Herbert Smith were acknowledging that it had been intended by TAG to perform the function of such a document, but I consider that any reasonable reader of the letter would have appreciated that TAG was no longer prepared to adopt a consensual or permissive approach to any aspect of the claims. In particular, I consider that the clear recommendation that any would-be claimant should take legal advice would be taken by an informed reader as an indication that they must rely on the advice of their own solicitors and could no longer safely base their actions on the assumption that TAG would overlook any point available to them in defending claims.
210. On 27 May 2005, Herbert Smith wrote a further letter to Lloyd Williams, again disputing the viability of the claims. The letter was written “without prejudice save as to costs” but it was not a negotiating letter and no objection has been taken by the claimants to TAG’s reliance on it. The letter stated that TAG’s “primary reason” for rejecting the claims made by Lloyd Williams’ clients was that there had been no increase in noise and that, on the contrary, the effect of the works had been positive. Two further reasons were given: first that the Act was not applicable because the Aerodrome had been in the occupation of a government department, and secondly that the works carried out to the runway and the apron were not “runway or apron alterations” within the scope of section 9(6). In explaining the first point Herbert Smith wrote that:
“TAG took its lease of the aerodrome on 5 February 2003. As you are aware, the works to the site were completed well before then – in fact in the previous year. At that time, the aerodrome was still owned and occupied by MOD/DERA. As a matter of law, the claimants’ case will fail on that basis alone”.
211. Mr Village submitted that by explicitly stating that the works were completed during 2002, this letter was clearly directing Lloyd Williams that, on a proper application of the statutory tests, any “relevant date” was a date in 2002. Nor was Herbert Smith’s explanation that there had been no runway or apron alterations within the scope of section 9(6) consistent with a continuing representation by TAG that the “relevant date” was 1 January 2003. On the contrary, he argued, read as a whole the letter made clear that there was no “relevant date” because the Act was not engaged, and that in any event the date of first use following completion of the alterations was a date in 2002.
212. I accept Mr Village’s submission that the meaning and effect of the letter of 27 May 2005 should be considered in conjunction with Ms Bartaby’s statement and the other letters relied on by TAG as qualifying or negating it.
213. The letter referred to the date of completion of the works as having occurred in 2002 in order to make the point that the Aerodrome had at that time been occupied by the MoD, and not specifically in order to identify a relevant date. Ms Bartaby herself had explained that the works had been completed during 2002, but she had not regarded that as an obstacle to the adoption of 1 January 2003 as a convenient “relevant date”. Although Herbert Smith dealt separately with the runway extension and the apron alterations in their letter, they did not provide specific dates for the completion and first use of either. Nor they did contradict Ms Bartaby’s observation that “there is no clear date as the various elements have been phased in”, which was the problem which her selection of the date of the CAA licence was intended to overcome. The pragmatic justification for the adoption of that date remained undisturbed, but nevertheless the letter is very far from consensual. No reader of it would continue to assume that they could rely on TAG’s cooperation in resolving the uncertainty which Ms Bartaby had tried to relieve.
214. It is also true (as Mr Marks and Mr Hunt both accepted) that if the letter was correct in asserting that there had been no runaway or apron alterations within the meaning of the Act, there could be no relevant date, but I do not think it is appropriate to go to that level of logical analysis in arriving at a fair reading of the letter. The letter itself did not make that point but, on the contrary, it specifically dealt with the possibility that TAG’s legal arguments might not be successful. TAG’s first line of defence was stated to be that the works had caused no increase in noise or other physical factors affecting the residents of Farnborough. It therefore asserted that: “even if, entirely contrary to our case, the matters set out at 1 and 2 are somehow inapplicable [i.e. if the Act applied to the works] the claimants’ case is still unsustainable” because the physical effect of the works had been beneficial rather than damaging. Herbert Smith reminded Lloyd Williams “that it is for your clients to prove that they have suffered depreciation in the value of their land and that this is the result of the physical effects of the work”. It is implicit in that challenge that if the stage was ever reached at which it became relevant to consider the question of diminution in the value of the claimants’ property, the required valuations would be carried out by reference to a relevant date. It was equally implicit that the identification of the relevant date would be one of the elements which the claimants would have to prove. They could not assume that the date previously suggested by Ms Bartaby would continue to be accepted by TAG as appropriate for that purpose.
215. I have considered whether it is material that Herbert Smith did not explicitly withdraw Ms Bartaby’s section 15 statement, or substitute an alternative statement containing different dates or denying the possibility of there being a relevant date. The purpose of a section 15(1) statement is to provide a mechanism by which potential claimants may obtain information to enable them to bring claims under the Act. It is a formal document which is intended to have legal consequences and to be relied upon. Although it is not conclusive of the facts stated, and although a responsible authority would be entitled to withdraw a statement and set up alternative facts as a defence to a claim, until it does so the recipient of the statement is entitled to continue to rely on it.
216. Despite the importance of the section 15 statement in this case, it is essential not to lose sight of the information which it contained. The purpose of such a statement is to provide the date of first use of public works following completion of alterations, rather than to state a relevant date. Ms Bartaby had explained the difficulty of doing that but had done her best to supply relevant factual information. Far from that information being withdrawn, it was reiterated by Herbert Smith when it stated that the works had been completed during 2002, well before the grant of the lease to TAG. What was withdrawn by the correspondence was the implicit statement that TAG was prepared to assume that 1 January 2003 was an appropriate date to adopt as the relevant date. As it is not the purpose of section 15 to relieve a claimant of the need to identify a relevant date from information provided by the responsible authority, and as the claimants could safely have proceeded on the basis of the factual information provided to them (i.e. that all of the works had been completed and phased in during 2002 and that the use of the runway had not ceased whilst the works took place) I do not think that the absence of a more explicit retraction of Ms Bartaby’s statement is relevant.
217. For these reasons I am satisfied that by May 2005 at the latest Ms Bartaby’s statement was no longer capable of providing the basis of an estoppel preventing reliance on a defence of limitation.
Was the representation relied on?
218. TAG also asserts that the claimants did not in fact rely on Ms Bartaby’s statement at all, but rather they had relied on their own legal advice which they had been encouraged by Herbert Smith to obtain. Mr Village submitted that the claimants’ choice of 1 January 2003 as the relevant date was an example of “tactical election” intended to solve the problem created for the claimants by section 84 and the exemption from the Act of any aerodrome in the occupation of a government department. In those circumstances there was nothing unconscionable or unfair in TAG asserting its defence of limitation.
219. Reliance is a question of fact, and a necessary ingredient of an estoppel by representation (although not of all estoppels).
220. There is no doubt that the suggestion that 1 January 2003 was the relevant date, and that 31 December 2009 was therefore the last date for claims to be submitted, gained very wide currency amongst the claimants as a result of communications from their chartered surveyors, Lloyd Williams and Mr Hunt. Lloyd Williams’ round-robin letter of 28 May 2003, distributed by FARA, contained a statement to that effect. When Lloyd Williams ceased acting it introduced its Farnborough clients to Mr Hunt by a letter of 6 November 2007 which drew attention to the significance of the last working day of 2009: “unless a claim is referred to the Lands Tribunal before that date, then the claim will fail due to effluxion of time.” The advice given by Mr Hunt was to the same effect. There are numerous examples of correspondence between him and his clients in which he reminded them of the six year limit. He invited 242 claimants to a public meeting in May 2009 to discuss the claims as the deadline approached. At the AGM of FARA on 6 December 2009 he is recorded as having advised that “with a starting date of 1 January 2003, it meant that the claims had to be settled or referred to the Lands Tribunal, by 31 December 2009 or else they would simply die under the 6 year Limitation Act.” The minutes of the meeting were circulated to FARA members, and some of the recipients passed them on to other interested neighbours.
221. In the Dandy proceedings it is suggested by the claimants that the relevant date is not 1 January 2003 but is the date on which the final elements of the “scheme” permitted by the October 2000 outline planning permission were completed and first used. It is relevant to note that the proposition that the relevant date may not yet have arrived was made by Mr Hunt in 2009. In the note of a presentation to FARA on 6 December 2009 Mr Hunt is recorded as advising:
“… that whilst the runway was first opened as altered on 1st January 2003, the planning approval authorised other works – the apron area was completed later, and the hangar building had still not been constructed – and so it could be that the “scheme” was only partially completed, or that the completion date of the apron alterations might be used.”
If the reference to the runway having first opened as altered on 1st January 2003 is an accurate report of what Mr Hunt said, it was of course an inaccurate recollection of what Ms Bartaby had said in her section 15 statement.
222. In support of his submission that the claimants and their advisers had ceased to rely on the statement by Ms Bartaby before the expiry of the limitation period, Mr Village cross-examined both Mr Marks and Mr Hunt on their understanding of the correspondence from Herbert Smith. Mr Marks appreciated that TAG were challenging the applicability of the Act, but he considered that the fact that Ms Bartaby had provided her statement in response to a formal request under the statute meant that it carried great weight. It was suggested to Mr Marks that for a period of two years from 2006 to 2008 he had considered the last date for claims to be the end of 2008, not 2009; a FARA newsletter of which he may or may not have been the author and an email to Mr Dragwidge certainly support that suggestion, but I am satisfied that they were based on a mistaken recollection by Mr Marks of the details of the correspondence. In any event Mr Marks confirmed in his witness statement and in his oral evidence that he and the claimants “placed total reliance on the advice we received from Lloyd Williams which was based on the statement we received from TAG’s Ann Bartaby.” I therefore consider that it is the extent of reliance on Ms Bartaby’s statement first by Lloyd Williams and then by Mr Hunt which is critical to the issue of reliance.
223. After they received Herbert Smith’s letter of 27 May 2005 Lloyd Williams initially sought clarification of the facts concerning the alleged occupation of the Aerodrome by the MoD (without much success) and then instructed counsel to advise. In those instructions Lloyd Williams summarised Herbert Smith’s reasons for rejecting the claims: that the lease of the Aerodrome had been granted to TAG on 5 February 2003, but that the works had been completed “well before then in the previous year” when the Aerodrome was still owned and occupied by the MoD. Lloyd Williams explained their own position in paragraph 22 of their instructions, where they said this:
“Lloyd Williams takes the view that TAG’s section 15 response of 17 February 2003 should be relied upon giving the Relevant Date as 1st January 2003 or at worst the Relevant Date moves to 5th February 2003 the Lease date. It should be noted that several claimants have exchanged contracts to sell/have sold and consequently would lose their claims as they were submitted on the 5th January 2004. In the Davies v Mid Glamorgan County Council case (Lands Tribunal 1979) a pragmatic view was taken on what should be the relevant date.”
224. Lloyd Williams’ instructions concluded with a series of questions, two of which concerned the significance of Ms Bartaby’s statement. They first asked whether they could rely on the section 15 statement and the letter to Dr Appleton and “if so is there a scheme under Part I”. Secondly they asked the following questions:
“What is the Relevant Date? Can we rely on the statement of 17th February 2003 that the Relevant Date is 1st January 2003? Or is the Relevant Date 5th February 2003, the date when a formal lease was granted to TAG from the Ministry of Defence?”
225. Counsel’s Opinion was dated 12 September 2005 and commenced with the following summary of his conclusions:
“(a) It would not be safe to rely on all parts of the statement of the 17th February 2003 from [TAG] in advancing a compensation claim under Part I of the Land Compensation Act 1973 in respect of noise nuisance from Farnborough Airport.
(b) Subject to clarification, the relevant date is the date when the Airport was first used after completion of any public works, namely 1st January 2003.”
226. Counsel explained the difference between a statement under section 15(1) and a certificate given by the Secretary of State under section 15(2) which was conclusive of the matters stated in it. For that reason, he advised:
“I therefore do not think that one can rely upon the section 15 statement for anything other than the relevant date; TAG can, subject only to any possible estoppel, withdraw, amend or otherwise advance some different information.”
227. In relation to the issue of occupation by a government department, counsel explained that he did not have sufficient information to advise whether the MoD was in occupation of the Aerodrome. He emphasised that “much may depend upon the actual facts prevailing prior to the date of the grant of the lease at the time of the carrying out of the works”.
228. Under the heading “relevant date”, paragraph 9 of the Opinion contained the following advice:
“Under the 1973 Act, the “relevant date” is the date on which the aerodrome is first used after completion of the alterations: see section 9(2). Again, I think the reference to “first use” is not a reference to the legal status of the body managing the aerodrome, but is a reference to actual use. Thus, if, notwithstanding that TAG may have been a licensee only on 1st January 2003, it was actually the manager at the time, and the Ministry of Defence was not in actual and practical occupation, then I would be content to rely upon the 1st January as a relevant date. Save only for the status of the claims that have already been made, it does not seem to me that any serious difficulties would arise if the relevant date was taken to be the 5th February 2003”.
229. The final pieces of evidence relevant to this issue are from the cross- examination of Mr Hunt. It will be recalled that Mr Hunt had taken over from Lloyd Williams in 2007 and, like them, was an expert in claims under the 1973 Act. He said that he had placed great weight on the section 15 statement and on Counsel’s advice that it could be relied on. Mr Hunt was cross examined by Mr Village about the position being taken by Herbert Smith in the correspondence I have already referred to and gave the following answers:
“Q. Yes. And it’s also clear that that issue, whether Part I of the Act was engaged at all, was raised at a very early stage by Herbert Smith, wasn’t it?
A. It was.
Q. So it’s clear that even if Ann Bartaby had identified what was a relevant date, which we of course dispute, the effect of the Herbert Smith letter was to resile from there being a relevant date. Because we said the Act didn’t apply.
A. Okay, can I say, this is obviously the crux of the matter, and I don’t want to go on at length but it was one of the things that attracted me to the claims because it wasn’t straightforward and easy. And what I – I had to weigh up that letter, the section 15 statement and the Barry Denyer-Green advice. And I actually think that the section 15 letter and the correspondence around it actually shows that TAG had considered that. Now it may be that Herbert Smith came to a different view later on. But the section 15 certificate had been issued by then.
Q. But there’s no question that (a) that Herbert Smith were saying loud and clear to the claimants, “We don’t think that the Act applies. We don’t think is a relevant date”. That’s what their position was, wasn’t it?
A. No – nothing to oppose you on that. I agree.”
Later in his cross examination Mr Hunt explained that he had regarded it as prudent to work to a deadline for commencing proceedings of the end of December 2009:
“I was thinking it was either going to be the January or the February date, just going back to the Barry Denyer-Green advice. So obviously with claimants I wanted to ensure that we got the earlier of the two dates.”
230. What is suggested by these exchanges and by the instructions delivered by Lloyd Williams to counsel is that at least after the receipt of Herbert Smith’s letter of 27 May 2005 neither of the chartered surveyors involved took Ms Bartaby’s statement at face value and that they were considering alternative dates which it might be more advantageous for the claimants to espouse.
231. In Lloyd Williams’ case, despite having served notices of claim specifying 1 January 2003 as the relevant date, by August 2005 they were canvassing alternatives and considering whether a more “pragmatic view” could be taken: could they rely on Ms Bartaby’s statement or could the relevant date be the date of grant of the lease (by which time TAG was clearly in occupation)?
232. For Mr Hunt’s part, having weighed up the letter from Herbert Smith, the advice of counsel and the statement itself he understood that the claim wasn’t straightforward or easy and was attracted by its complexity. Counsel’s Opinion to which Mr Hunt went back when considering when the references needed to be commenced is also significant. Although counsel identified that the relevant date was the date of first use after completion of the alterations, there is no consideration in the Opinion of the significance of the fact that the work had been completed “well before then in the previous year”, as Lloyd Williams had instructed, nor of the difficulty identified by Ms Bartaby of fixing a relevant date where the Aerodrome had remained operational throughout the course of the works. Counsel’s statement that he would be “content to rely upon the 1st January as a relevant date” was suggestive of a tactical choice. Importantly, the selection of that date was conditional on it being established that the MoD was no longer “in actual and practical occupation” and clarification of that issue was the only clarification which he suggested was required. Counsel also suggested that no “serious difficulties would arise if the relevant date was taken to be the 5th February 2003”. The attraction of 5 February was obviously that by then it could be said with assurance that the MoD was no longer in occupation, but the advice is again suggestive of a tactical election.
233. I therefore think Mr Village is correct in his suggestion that the approach of the claimants’ advisers was conditioned by the importance of finding a date which would enhance the prospects of demonstrating that the MoD was no longer in occupation. If clarification could be obtained that the MoD had been out of occupation by 1 January 2003 that date could safely be relied on although 5 February was another viable alternative. At that stage, 2005, the selection of the relevant date seems also to have been influenced by the desire not to disadvantage claimants who had ceased to own their properties after serving claim notices early in January 2004. A further option, which was given full expression in the Dandy references, was that a much later relevant date could be selected. The relevant date appears to have been treated, as Mr Village put it, as a matter of tactical convenience.
234. At the date these matters were first being considered by Lloyd Williams, and later by Mr Hunt, there was no immediate problem of limitation, although the deadline for bringing references to the Tribunal was certainly in the minds both of Lloyd Williams and of Mr Hunt and was mentioned by them to their clients. Until 2009 the question whether the relevant date was in January 2003 or a date in 2002, or some later date altogether, mattered only to those who may have given a notice of claim prematurely and who could no longer give a new notice as they had subsequently sold their property. It is therefore understandable that the attention of the claimants’ advisers was on solving more fundamental problems.
235. An extended period of apparent inactivity followed counsel’s involvement in 2005 and again in May 2006 when he once more emphasised the importance of clarifying the facts relevant to the issue of MoD occupation. Mr Hunt had taken over from Lloyd Williams in 2007 and had initially concentrated on collecting preliminary valuation evidence and garnering support from additional claimants. So it was that by 2009 the claimants were no further forward in establishing the facts necessary to enable a concluded view to be formed on MoD occupation.
236. There was a flurry of preparatory activity by Mr Hunt in the second half of 2009, but by 11 June 2009 the limitation period for claims based on the runway extension had already expired. Claims in relation to the apron became barred on 12 October 2009. By that stage, therefore, the die was cast. None of the claimants who obtained advice for the first time after those dates can succeed in setting up an estoppel to defeat the defence of limitation as the statements now relied on (but of which they were as yet unaware) had no influence on their inactivity.
237. More importantly, I am satisfied that the statement made by Ms Bartaby in February 2003 was no longer relied on by the claimants’ advisers, and specifically by Mr Hunt, as a statement as to the date which TAG were prepared to accept as the relevant date. The claimants’ timetable depended on the advice of counsel and the assessments of Lloyd Williams and later of Mr Hunt. The importance of finding a date by which it was hoped the MoD’s occupation of the Aerodrome could be shown to have ended was uppermost in their minds. Despite a clear appreciation that the works relied on had been completed during 2002, and of the fact that the runway in particular had remained continuously in use, the claimants advisers elected to base their claim on a later relevant date. The selection of a relevant date (as counsel had put it) rather than the identification of the relevant date had become a question of law and tactics rather than of fact. The approach of the claimants’ advisers in 2009 is reflected in their Johnston statement of case which I have already quoted: they adopted what they considered to be “a common-sense and pragmatic approach” to the relevant date. Such an approach may have been quite appropriate when there was little or no need for precision, but it is not what the Act provides for and by adhering to it up to and beyond the expiry of the limitation period the claimants left themselves dependent on the cooperation of TAG and on its willingness to adopt the same approach.
238. I do not think that this combination of circumstances demonstrates reliance by the claimants sufficient to sustain an estoppel. The claimants were well aware that the more constructive and consensual approach taken by Ms Bartaby in February 2003 had been replaced by the staunchest resistance. They had been strongly advised to seek legal advice, and had done so. They placed their faith in the expertise of their own advisers and not in the continuing truth of Ms Bartaby’s statement. To put it another way, given the specialist advice which the claimants obtained and the tactical element in the date they adopted on the strength of that advice, I do not think it can be said to be unconscionable for TAG to rely on the limitation defence available to it.
239. My conclusions on the withdrawal of the representation and the claimants’ reliance mean that for the purpose of the Johnston references the relevant date or dates must be taken to be those which I have already determined in answering issues 1 and 5(a). As a result the references must be dismissed. Nevertheless, as I have found the resolution of the estoppel issue far from straightforward, I will deal fully with the two remaining issues in the Johnston references.
Johnston issue (3): Did the claimants serve valid notices of claim?
240. A claim for compensation under the 1973 Act must be made in accordance with section 3(1), which provides as follows:
“A claim under this Part of this Act shall be made by serving on the responsible authority a notice containing particulars of:
(a) the land in respect of which the claim is made;
(b) the claimant’s interest and the date on which, and the manner in which, it was acquired;
(c) the claimant’s occupation of the land (except where the interest qualifies for compensation without occupation);
(d) any other interests in the land so far as known to the claimant;
(e) the public works to which the claim relates;
(f) the amount of compensation claimed;
(g) any land contiguous or adjacent to the land in respect of which the claim is made, being land to which the claimant was entitled in the same capacity (within the meaning of section 6 below) on the relevant date.”
241. In the case of public works comprising an aerodrome, a claim for compensation for depreciation arising out of runway or apron alterations must also comply with section 9(4), which requires that:
“… the notice of claim shall specify, in addition to the matters mentioned in section 3 above, the alterations … alleged to give rise to the depreciation”.
242. The statutory scheme requires a valid notice of claim as a condition of any reference to the Tribunal. In Fennessy v London City Airport Ltd [1995] 2 EGLR 167 the Lands Tribunal (Judge Rich QC) explained at 168A that:
“It is not a question of there being a right to compensation running from the moment by reference to which compensation is to be assessed, namely the first claim day; the entitlement arises on the making of the claim and only then.”
“The natural and literal meaning of the words “the claim shall be made by serving a notice containing certain particulars” is that a notice which fails to contain such particulars is ineffective to make the claim.”
These observations were followed by the Lands Tribunal in Donaldson v Hereford and Worcester County Council [1998] 76 P. & C.R. 93 and were not disputed by the claimants in these references.
243. For ease of reference I repeat the relevant parts of the claim notices on which the claimants rely in the Johnston references. The notices were each headed “Claim for Compensation under Part I of the Lands Compensation Act”. The name and address of the claimant was stated, then the following:
“2. The public works which give rise to the claim. Please state:
(1) the works concerned: Farnborough Airport – 2003 Scheme
(2) the physical factors: All the Physical Factors
(3) the relevant date (see note 4) 01/01/2003”
No notes were provided with the claim notices and in some the invitation to “see note 4” was omitted. In the initial batches of notices served in January and February 2004 “the works concerned” were described, as above, as “Farnborough Airport – 2003 Scheme”; in later notices the word “Scheme” was sometimes omitted and sometimes the formulation “Farnborough Airport – 2003 Scheme negotiations” was used; puzzlingly “Farnborough Airport – 2003 Scheme – L” was also sometimes adopted. When Mr Hunt took over in 2007 the claim notices reverted to “Farnborough Airport – 2003 Scheme”. The notices continued by identifying the land in respect of which the claim was made and providing the other particulars required by section 3(1) including the amount of compensation claimed. The notices were delivered by Lloyd Williams in batches under cover of a letter headed “Farnborough Airport – 2003 Scheme”.
244. Mr Village initially submitted that the notices of claims were deficient in two vital respects and that the Tribunal accordingly had no jurisdiction to determine the references. It had first been contended that on a fair reading none of the notices of claim could be said to “specify … the alterations … alleged to give rise to the depreciation” as required by section 9(4). At the hearing it was also said that they did not state “the amount of compensation claimed” and so failed to comply with section 3(1)(f). The second of these arguments was not pleaded but in Mr Village’s opening statement it was suggested that Lloyd Williams and Mr Hunt had not included a genuine pre-estimate of the amount of compensation to which each individual claimant would be entitled and that the sums identified in each of the claim notices as being the amount of the claim were “arbitrary” rather than “reasoned” or “conscientious”.
245. In a case such as this any important factual allegation, especially one raising an issue of competence or good faith on the part of a professional person, ought to be properly pleaded. Mr Walker, who had drafted the original batches of claim notices, retired from Lloyd Williams in 2007 and was not asked to give evidence. During the hearing Mr Village QC indicated that he did not intend to proceed with his second argument but requested permission to amend TAG’s statement of case so that it could be raised at a later date if the references proceed. I refuse permission to amend. In my judgment it would be unfair on the claimants to permit the introduction of a further fundamental attack on the Tribunal’s jurisdiction to consider the references; they have prepared to deal with the pleaded argument on the invalidity of the claim notices and it was incumbent on TAG to raise all of the grounds of invalidity on which it intended to rely so that they could be considered as part of a single preliminary issue.
246. Returning to the main issue on the validity of the notices, Mr Village submitted that the words “Farnborough Airport - 2003” or “Farnborough Airport – 2003 Scheme” failed to specify the alterations which were said to give rise to the depreciation in value of the property referred to in the notices. That was unsurprising since the template or precedent on which the notices were based had been taken, without modification, from the form used for claims under the 1973 Act relating to new highways. Such claims require only the particulars referred to in section 3(1) be stated, which do not include a description of any alterations or change of use. Only claims under section 9 arising out of alterations to public works or changes in their use require the additional information.
247. The purpose of a notice under section 3 is to provide information to the responsible authority about the claim which is being made. No form of notice is prescribed and the validity of the notice must therefore depend on whether the required information has been conveyed to the recipient by the language used in the notice. The test was explained by Lord Steyn in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, a case which concerned the meaning and effect of a notice intended to exercise a break clause:
“The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene.
… the enquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind. It follows that one cannot ignore that a reasonable recipient of the notices would have had in the forefront of his mind the terms of the leases. Given that the reasonable recipient must be credited with knowledge of the critical date and the terms of clause 7(13) the question is simply how the reasonable recipient would have understood such a notice. This proposition may in other cases require qualification. Depending on the circumstances a party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted …. Such an issue may involve subjective questions.”
248. The relevant context in this case includes the exchanges which had already taken place between Lloyd Williams and Ms Bartaby in 2003. The section 15 questionnaire which Ms Bartaby completed and returned took the form of a letter headed “Farnborough Airport Extension of Runways & Taxiways (2003)” and had itself been delivered by Lloyd Williams under cover of a letter requesting that Ms Bartaby complete it and “provide us with a plan showing the engineering works, taxiways and runways that have triggered the scheme”. Ms Bartaby’s response had described those engineering works and runways (and explained that there had been no work to taxiways) and had included detailed drawings showing the runway extension and the new apron.
249. Ms Bartaby was also familiar with the concept of a “scheme” for the purposes of compensation and she had used the term in her correspondence with Dr Appleton. Her letter of 23 December 2003 informed him that “the extension and alteration of the runway and the construction of a new apron constitute a scheme under the Land Compensation Act 1973”. On 17 February 2003 she wrote enclosing “a statement addressing the completion date for the scheme”. When she completed the section 15 statement she informed Lloyd Williams that “the Scheme Name is Farnborough Airport” and the plans she provided were in response to the request “define Scheme boundaries”. The same expression was used in the covering letter under which the claim notices were delivered.
250. I am satisfied that a reasonable recipient of the 34 claim notices delivered to TAG on 5 January 2004 would understand that the alterations which it was being alleged had given rise to the diminution in the value of the property were the same runway and apron alterations as had been described by Ms Bartaby in her section 15 statement. Those alterations were not specified by being set out extensively but by the adoption of the terminology, or shorthand, which had been used in the section 15 statement to describe and define them. The first batches of notices specified “the works concerned” as “Farnborough Airport – 2003 Scheme” thereby incorporating Ms Bartaby’s “Scheme Name” and “Scheme boundaries”. To an informed reader (who would understand that the earliest date on which a claim could be made was 12 months after the relevant date) the reference to “2003 Scheme” could only mean the works described by Ms Bartaby in her section 15 statement which had proposed 1 January 2003 as the relevant date. The omission of the word “scheme” from later notices is not a material distinction because the construction of those notices must have regard to the numerous notices which had already been given in the original form and which clearly established the identity of the alterations for which Lloyd Williams’ clients were claiming compensation. There was no basis on which it could be thought by a reasonable recipient that the later notices were referring to different works. Even if it is not permissible to have regard to the earlier notices when considering whether the later abbreviated notices were compliant with section 9(4), I am satisfied that the later notices adopted the parties’ shorthand reference closely enough to specify the same works.
251. Confirmation of the adequacy of the notices to convey the required information is provided by the fact that TAG itself was not confused or uncertain about the alterations which were being relied on. When Herbert Smith wrote their letter of 27 May 2005 explaining TAG’s reasons for rejecting the claims it did not suggest that any inadequacy in the claim notices was relied on and it was able to explain why it said the runway and apron alterations were not within the terms of the Act.
252. I reach the conclusion that the claim notices specified the alterations without reliance on the claimants’ alternative contention that TAG was estopped from disputing compliance with section 9(4) because the request for and provision of the section 15 statement established between the parties a common form of reference to the works carried out prior to 1 January 2003 and identified the “scheme” as the scheme defined on the plans provided. TAG did not challenge the notices at the time or suggest that it required a more detailed description to enable it to respond to the claims. The first complaint about the form of the notices was in TAG’s statement of case by which time it was too late for new notices to be served. I accept those submissions and, had it been necessary to do so, I would additionally have found that it would be inequitable for TAG now to be permitted to rely on the alleged inadequacy of the claim notices. There had existed between the parties a conventional method of referring to the works from which TAG could not resile after the time for giving a valid claim notice had expired. The existence of that reference system makes it unnecessary to go down the estoppel route.
253. Had I reached the opposite conclusion, and found that the claim notices had not sufficiently specified the alterations relied on, I would have found the notices wholly ineffective and the Tribunal as being without jurisdiction. As the Court of Appeal has explained in Natt v Osman [2014] EWCA Civ 1520 the consequence of a failure to comply with a requirement as to the content of a statutory notice is a question of construction of the relevant statute and does not depend on considerations of prejudice. I am satisfied that a failure to provide particulars required by section 9(4) has the result that a purported notice of claim under section 3 is wholly invalid and cannot be cured by later amendment as the claimants suggested.
254. For these reasons I determine issue 3 in the claimants’ favour.
Johnston issue 2: Are the claims barred by section 84(1) because at the relevant date the Aerodrome was in the occupation of a government department?
255. The effect of section 84(1) is that Part I of the 1973 Act does not apply to any aerodrome in the occupation of a government department. TAG maintains that the MoD remained in occupation of the Aerodrome at all times until it granted the lease to TAG on 5 February 2003. It follows that, on TAG’s case, whether they or the claimants are correct about the relevant date, the improvements with which the Johnston references are concerned were all carried out before that date.
256. In the Johnston references (but not in Dandy) the parties were in agreement that the question whether the aerodrome was in the occupation of the MoD was to be considered by reference to the facts as they were on the relevant date. That agreement was achieved at an early stage and was reflected in the formulation of this preliminary issue. At a much later stage TAG applied to amend its statement of case and to reformulate the preliminary issue to assert that the question of occupation should be considered throughout the progress of the works, rather than merely at their conclusion, with any diminution which was the result of work done while the MoD was in occupation being ineligible for compensation. I refused to permit the necessary amendments because I was satisfied that the additional investigations which would be required would have been beyond the restricted resources of the claimants.
257. As a result of that continuing consensus it is for consideration whether the MoD was in occupation when the runway extension was completed and first used (which I have found to be 10 June 2002) and when the North Apron was completed and first used (12 October 2002). In case I am wrong about the estoppel issue I will also consider the position on 1 January 2003.
258. The parties were in agreement that when used in a statute the term “occupation” was capable of a variety of meanings and must be construed in its particular context. The decision of the House of Lords in Newnham College v Revenue & Customs [2008] 1 WLR 888 illustrates that principle. At [9] Lord Hoffmann said that occupation “is a word which can mean different things in different contexts”. At [39] Lord Walker said of the expression “in occupation”:
“That expression has no precise or inflexible meaning and it is used in many different statutory contexts, including rating, tax, occupier's liability for dangerous premises, and the protection of the rights of tenants and mortgagors. It is in general taken to import an element of physical presence and some element of control over the presence of others. But these generalities are strongly influenced by the statutory context and purpose.”
259. In the context of VAT (with which Newnham was concerned) the concept of occupation had acquired a settled meaning and referred to “the right to occupy property as if that person were the owner and to exclude any other person from enjoyment of such a right.”
260. Mr Wald, for the claimants, submitted that in the context of section 84(1) the concept of occupation should be construed narrowly. In Part I of the 1973 Act Parliament had legislated to restore to land owners the right to compensation for nuisance which had been removed in the case of public works. Section 84(1) was an exception to that restoration for aerodromes in government occupation and, as an exception, it ought to be approached restrictively. It would be bizarre, Mr Wald suggested, for a private company such as TAG, which managed an aerodrome for its own commercial purposes, to escape liability to compensate neighbouring owners for loss otherwise falling within Part I simply because the alterations in question had been completed by that company before it acquired a proprietary interest in the aerodrome and while a government department remained nominally in occupation.
261. It was necessary, Mr Wald submitted, to look at the substance or reality of the MoD’s relationship to the Aerodrome, and not to focus exclusively on the relationships described in the contractual documents. In Newnham the College had built a new library and wished to recover the VAT on the cost of construction. It devised a scheme to achieve this objective, one element of which required that it be “in occupation” of the land; the scheme involved the grant of a lease of the library to a company of which the College was the sole shareholder and to which it transferred all of the books and equipment in the library and seconded its library staff. The lease entitled the company to exclusive possession of the library but as Lord Hoffmann explained (at [18]):
262. I accept that it is necessary to consider both the legal rights of the parties and how those rights were exercised in practice. If the manner in which the parties’ arrangements were implemented was shown to be inconsistent with their legal entitlement that may suggest either that the documents conferring the rights were a sham or that they had been varied. In this case it has not been argued that the apparent contractual arrangements between the parties were a sham, nor is there any evidence suggesting that those arrangements were varied. I therefore propose to consider the nature of those contractual arrangements and the extent to which the MoD can be said to have been physically present at the Aerodrome and to exercise control over the presence of others at the Aerodrome. I will also have regard to the evidence concerning the practical day to day operation of the Aerodrome.
263. For TAG Mr Village QC emphasised one important principle at the outset, namely that activities carried on by an agent within the scope of its authority are, ordinarily, the activities of the principal. That rule was illustrated by reference to three decisions of the Court of Appeal: Pegler v Craven [1952] 2 QB 693; Hills (Patents) Ltd v University College Hospital Board of Governors [1956] 1 QB 90; and Wallace v Barratt (1997) 74 P. & C.R. 408. In the last of these cases it was alleged that, in breach of covenant, the tenant of an agricultural holding had shared occupation of the holding. The tenant was a member of a partnership and the holding was farmed by the partnership on behalf of the tenant. The Court of Appeal applied the principle relied on by Mr Village that in the ordinary case occupation by an agent is the occupation of the principal, and held that the engagement of a single contractor to carry out all of the farming operations on an arable farm could not ordinarily result in the farm being occupied by the contractor. That principle was key to the issue because, Mr Village submitted, the management of the Aerodrome by TAG was undertaken as agent or contractor for the MoD and was therefore to be regarded as occupation of the Aerodrome by the MoD.
264. Until 7 August 2007 the MoD was the registered proprietor of the freehold interest in the Aerodrome. On that date the freehold was transferred to TAG. Until 5 February 2003 there was no lease of the Aerodrome as a whole, so, with limited exceptions, the MoD’s right to possession was unencumbered by any proprietary right enjoyed by any other person. The main exception which featured in the evidence was the lease of the Civil Enclave granted to Carroll on 13 January 1989 and subsequently acquired by BAE Systems, which sublet the Enclave to TAG on 6 October 1999. In his closing submissions Mr Wald also referred to an MoD document apparently dating from about 10 April 2000 which refers to proposals to grant new leases of three of the sheds or hangars on the Aerodrome to TAG to expire on 30 June 2002 (but terminable by six months notice by either party at any time after 31 December 2000). It may well be that TAG had the use of some of the sheds, but Ms Bartaby was not asked to comment on the document in cross examination and I was shown no other document granting TAG proprietary rights over the Aerodrome rather than the Civil Enclave.
Civil Enclave Aircraft Rights
265. The position in relation to occupation of the Civil Enclave itself from 1989 until 2003 is relatively straightforward. As a result of the lease granted to Carroll the MoD was excluded from possession of the Enclave and had neither actual physical occupation nor the right to control what went on there at any relevant time. On the other hand, no part of the alterations to the Aerodrome with which these references are concerned affected the Civil Enclave. The alterations were to the runway and aprons within the remainder of the Aerodrome, and when TAG was granted its lease of the Aerodrome in February 2003 the Civil Enclave was excluded. It was not suggested that the fact that the MoD was not in occupation of the Civil Enclave had any relevance to the issue.
266. The rights which TAG enjoyed pursuant to its underlease of the Civil Enclave from 6 October 1999 have already been referred to in paragraph 85 above. They comprised “Aircraft Rights” which enabled TAG to operate up to 25,000 ATMs per year from the Aerodrome and to manage the ground operations of aircraft at such times as they were within the Civil Enclave itself. Ground operations while civil aircraft were outside the Enclave, taxiing, taking off or landing, or parked on the South Two Apron, were under the supervision of MoD staff or its contractors. The movements of aircraft while airborne were similarly under the direction of the MoD’s contracted air traffic controllers.
267. I was not shown a copy of the 1989 lease of the Civil Enclave to Carroll and I assume that the rights which it granted for the use of the Aerodrome were coextensive with the Aircraft Rights subsequently conferred by the 1999 underlease. Those rights were not rights of occupation of the Aerodrome but were merely rights to use the services and facilities provided by the MoD. They did not infringe the MoD’s control and occupation of the Aerodrome.
268. The underlease was for a term expiring on 31 December 2000 (with no security of tenure under Part 2 of the Landlord and Tenant Act 1954) and required TAG to pay an annual rent of £150,000 together with a sum reserved as further rent by clause 2 and described in clause 6(4) as fees payable for Aircraft Rights. Those fees comprised the whole of the MoD’s reasonable operating costs incurred in the opening of the Aerodrome on Saturdays, Sundays and Bank Holidays, plus an additional fixed fee of £400,000 per annum payable by equal quarterly instalments. I was not shown any other document under which TAG was liable to make payments to the MoD for the use of the Aerodrome prior to 31 December 2000. The underlease included at clause 7(10) an option to renew (subject to the consent of the MoD) for a further term expiring not later than 31 December 2003. I was told that the underlease continued by agreement until after the grant of the Aerodrome lease on 5 February 2003.
The Agreement for Lease
269. The Agreement for Lease granted to TAG by the Secretary of State for Defence on 17 February 1998 conferred no proprietary rights on TAG but provided for the grant of the Aerodrome lease (referred to as the “Main Lease” to distinguish it from leases of outlying radio mast sites) on the satisfaction of the conditions precedent described in clause 2 (TAG’s procurement of an aerodrome licence from the CAA and the grant of a satisfactory planning permission). By clause 8.3.1 completion of the Lease was to take place on the first working day after the expiry of three weeks commencing on the date of the Aerodrome Licence. The Aerodrome Licence was granted with effect from 1 January 2003 and in the event the parties agreed a completion date of 5 February 2003.
270. The conditions precedent to completion were required by clause 2 to be satisfied by a longstop date of 31 December 2000, but clause 2.3 provided for that date to be extended as follows:
“2.3
2.3.1 If by 31 December 2000 a resolution to grant a Satisfactory Planning Consent has been passed by the Local Planning Authority for the Premises the Tenant may by giving notice in writing to the Landlord to that effect not later than 31 December 2000 extend the Longstop Date to 31 December 2001 provided that the tenant reimburses to the Landlord the costs incurred by the Landlord in keeping the premises operational as an Aerodrome from 31 December 2000 to 31 December 2001 on the basis previously operated.
2.3.2 The Landlord will (subject to the provisions of Military Regulations) consider reasonably methods by which the Tenant might be able to take over the operation and maintenance of the Premises in a manner broadly similar to the existing arrangements with Comax Limited.”
271. Clause 2.3.2 (above) contemplated that TAG might take over the operation and maintenance of the Aerodrome before completion of the lease (although it is not clear whether this was only to be in the event of an extension of the longstop date as described in clause 2.3.1.) Its effect needs to be considered together with clause 6.3 which made very similar provision as follows:
“In the event that the Tenant completes substantial works to the Premises before the grant of the Main Lease the Landlord will give consideration (acting reasonably) to any request that the Tenant at its own expense take over the operation of the Premises on behalf of the Landlord until the grant of the Main Lease.”
272. Clauses 2.3.2 and 6.3 both demonstrate that it was intended that TAG might take on a greater role in the management and operation of the Aerodrome before completion of the lease, but only once a level of commitment had been demonstrated. In clause 2.3.2 the possibility of that greater role seems to have been conditional on TAG having achieved a resolution to grant a satisfactory planning permission by the local planning authority, while clause 6.3 required that it should first have completed “substantial works”. Three further points can be made about the effect of clauses 2.3.2 and 6.3.
273. First, they committed the MoD to do no more than give consideration to arrangements allowing TAG to take over the operation of the Aerodrome; there was no express obligation to implement such arrangements, although arguably such an obligation might be implicit. In any event the government was publicly committed to cessation of MoD direct management of the Aerodrome and in April 1998 Hansard recorded that its contract with Comax for the provision of services at Farnborough would expire on 31 December 2000. Comax was the MoD’s facilities manager at Farnborough. It had formerly been a department of DERA but was privatised in 1998 and was now a commercial concern which was paid for its services.
274. Secondly, while clause 6.3 records expressly that the operation of the Aerodrome by TAG under the contemplated new arrangements was to be at TAG’s own expense, clause 2.3.2 makes no such stipulation but gives the opposite impression by describing TAG’s proposed role as “broadly similar to the existing arrangements with Comax Ltd” (under which Comax was paid for managing the Aerodrome). However, to the extent that clause 2.3.2 applied after the longstop date had been extended by a further year from 31 December 2000 in accordance with clause 2.3.1, any such extension was expressly conditional on TAG reimbursing the costs incurred by the MoD in keeping the premises operational. That would seem to point to an intention that clause 2.3.2 would be applicable only in the event of an extension of the longstop date but, in any event, it is apparent that the parties intended that if TAG took responsibility for operating the Aerodrome between 31 December 2000 and completion of the lease it would do so at its own expense.
275. Thirdly, and paradoxically, it was not intended that TAG would undertake the operation and maintenance of the Aerodrome solely for its own benefit. Clause 2.3.2 makes the consideration of any change subject to the provisions of military regulations and contemplates arrangements similar to those with the MoD’s existing contractor, Comax; both features suggest that TAG was intended to assume a subordinate role comparable to that of Comax. Clause 6.3 is more explicitly to the same effect as it contemplates that TAG will take over the operation of the Aerodrome “on behalf of the Landlord”.
276. The possibility that TAG might assume greater responsibility for the operation of the Aerodrome under arrangements yet to be worked out was quite separate from the right conferred on it to have access to the Aerodrome to facilitate the execution of the works which it was known would be required before the CAA licence could be obtained. Access was provided for by clause 6.1, as follows:
“If the Tenant shall desire to enter prior to the Completion Date upon the premises to be comprised in the Main Lease … and shall at any time before the Completion Date give notice to the Landlord of such its desire then immediately after the Landlord shall have approved in writing plans and specifications of such works and of all supporting warranties or bonds reasonably required by him (such approval not to be unreasonably withheld or delayed in relation to any works approved by (or not also requiring the approval of) the Civil Aviation Authority) the Lessee shall be at liberty to enter upon so much of the premises to be comprised in the Main Lease…. as shall be necessary to carry out the works so approved ALL such works shall be carried out under the supervision of the Landlord’s surveyor entirely at the risk of the Tenant ….”
277. The right of access to the Aerodrome provided by clause 6.1 was limited in a number of respects. It was to be solely for the purpose of carrying out works; it extended only to so much of the Aerodrome as was necessary for that purpose; and it was exercisable only after the plans and specifications for the works had been approved by the MoD, and only on notice to the MoD; the works themselves were to be carried out under the supervision of the MoD’s surveyor.
278. Nor did the right of access to undertake works entail any exclusive right for TAG in relation to the new or improved facilities which it might construct. That was made clear by clause 6.2:
“To the extent that the Tenant completes any works referred to in clause 6.1 before the grant of the Main Lease then the Landlord will be entitled to make use of such works to the extent that it reasonably requires to do so for the better operation of the Premises without charge by the Tenant save that the Landlord will either maintain such works to such standard as may be reasonably required by the Tenant or pay the Tenant’s reasonably incurred costs in so doing.”
The MoD was therefore to have the right to use any new lighting, hangars or aprons, and even the new control tower which it was known would be required to the extent that it reasonably required them, and at no cost.
279. Finally, clause 8.3.3 of the Agreement made provision for the purchase of navigation and snow clearing equipment listed in an inventory in return for an un-quantified element of the £2 million premium payable on completion. The inventory itself is not in evidence but a lengthy schedule of equipment, plant and machinery to be provided by the MoD was listed in Schedules 4 and 5 of the Management Contract and I assume the same was to be handed over on completion of the Lease. The equipment was obviously required for the operation of the Aerodrome and the retention of ownership by the MoD until completion was both a reflection of the MoD’s continuing responsibilities and a physical manifestation of its continuing occupation of the site through its vehicles and other apparatus.
280. These features of the Agreement for Lease make it impossible to suggest (and it was not suggested by Mr Wald) that the presence of TAG on the Aerodrome for the purpose of undertaking the works was evidence of the MoD having ceased to be in occupation.
The Management Contract
281. Of greater importance is the Management Contract which took effect from 1 January 2001. The Management Contract is not an easy document to navigate. It consists of an undated front sheet followed by eleven Schedules, the tenth of which incorporates a series of standard MoD contract terms (or “DEFCONs”) which are listed as conditions of the contract and attached to the version which I have been shown. There is no execution page and the only indication of TAG’s participation as a contracting party is on the front sheet. Agreement to the terms was signified by the MoD’s acceptance of TAG’s tender submitted on 24 November 2000 in response to an invitation from the MoD on 2 August 2000 to propose terms for TAG to assume responsibility for “the provision of support services” at the Aerodrome.
282. TAG’s tender document explained that it proposed to appoint Mr Wood, the existing Aerodrome Facility Manager as its Aerodrome Director, who would become a TAG employee. It would enter into contracts with National Air Traffic Services (“NATS”) for it to continue to provide air traffic control, with Amey Comax (as Comax was now known following a corporate merger) for it to continue to provide technical and support services, with St John Ambulance and with a private security firm each to continue to provide the services they had formerly provided direct to the MoD. Draft contracts with each of these service providers had already been negotiated and were annexed to the tender document. Although the document is described as a tender for the management of the Aerodrome by TAG it included no proposal for any sum to be paid by the MoD to TAG and it is clear that the unspoken assumption of the document (consistent with clauses 2.3.2 and 6.3 of the Agreement for Lease) was that TAG would be solely responsible for meeting the operating costs of the Aerodrome from 1 January 2001.
283. Acceptance of TAG’s tender (which was the only tender invited by the MoD) came in a letter from the Defence Procurement Agency dated 18 December 2000. On the following day the Secretary of State for Defence extended the delegated authority given to the MoD’s Director of Air Operations and Director of Flying to supervise and regulate the Aerodrome “in order for flying to continue at Farnborough beyond 31 December, and for the airfield to continue to operate as a Government Aerodrome”.
284. The standard conditions of contract contained in Schedule 10 of the Management Contract included at paragraph 9 a statement that the period of the contract was to be from 1 January 2001 to 31 January 2003, subject to the MOD’s right of termination. Schedule 1 of the Management Contract was a general statement and provided for TAG, referred to throughout as “the Contractor”, to be responsible for the management of air traffic, ground facilities, equipment and property at the Aerodrome and within its airspace at the times specified and subject to the detailed requirements in the subsequent schedules. The MoD, referred to as “the Authority” was to provide vehicles for Aerodrome use and required that before TAG’s staff drove on the site they were to obtain an Aerodrome driving permit issued by the Manager Air Traffic Services (whom I take to have been an MoD employee).
285. Paragraph 10 of Schedule 10 confirmed that the services covered by the contract were to be provided entirely at the contractor’s expense. By paragraph 11 TAG was not to withdraw its offer to provide the services during the contract period, an agreement for which consideration of £1 was provided by the MOD.
286. Paragraph 15 of Schedule 10 placed constraints on what TAG was entitled to do within the Aerodrome:
“Except as provided in this Contract neither the Contractor nor any of his employees or agents shall carry out any business or trading activity within the confines of the Unit and no advertisement, sign or notice of any description shall be exhibited without the prior approval, in writing, of the Authority”.
In similar vein was paragraph 2(b) of “Defcon 76” (one of the standard MoD contract terms incorporated into Schedule 10) which provided that:
“Any land or premises (including temporary buildings) made available to the Contractor by the Authority in connection with the Contract shall be made available to the Contractor free of charge unless otherwise stated in the Contract and shall be used by the Contractor solely for the purposes of performing the Contract. The Contractor shall have the use of such land or premises as licensee and shall vacate the same upon completion of the Contract.”
Finally, TAG’s use of MoD equipment was regulated by paragraph 23.1 of Schedule 10:
“The Authority shall allot the fixed plant equipment, including spares as appropriate, and accommodation detailed on the Contract. The Contractor shall be entitled to use the said facilities on Ordinary Loan for the purposes of the Contract and no other purpose whatsoever, unless the prior written approval of the Authority has been obtained. The Authority reserves the right to vary numbers and types of the said facilities allotted for the purpose of the Contract.”
287. The list of services to be provided by TAG was contained in Schedule 2 and included all of the activities required to operate the Aerodrome. Paragraph 2 of the Schedule concerned air traffic services. These were to be provided to the satisfaction of the MoD’s Director of Flying. Under the heading Control of Airspace and Ground/Access Areas, Schedule 7 made further detailed provisions for air traffic services including the following allocation of responsibility between the MoD’s Directors of Flying and of Air Operations and TAG’s Aerodrome Director, Mr Wood:
“1. Air Traffic Services are to be provided in accordance with Director of Flying Air Traffic Control Instructions …. and any approval issued by the CAA Safety Regulation Group …
2. The Aerodrome operates under the authority of the Director of Flying DPA and is regulated as a Military Aerodrome.
3. Supervisory responsibility for the management and safe organisation of Farnborough Aerodrome is vested in DERA D/Air Ops.
4. The Aerodrome Director is responsible to the DERA D/Air Ops, for the provision, operation, management and maintenance of the Farnborough Aerodrome, its movement and manoeuvring areas, aerodrome services, equipment, buildings and facilities in accordance with regulations and standards stated in this Contract.
5. …
6. The Aerodrome Director is to seek approval of flying activities and other activities that impact on the operation of the Aerodrome, from the Dera D/Air Ops.”
288. Schedule 2 also referred to the fact that the Aerodrome was not subject to civilian planning control, at paragraph 11:
“Local Authority Constraints
As a Government Aerodrome, MOD is not legally constrained by Local Authority Regulations. Nevertheless MOD has consulted with the Local Authority and imposed constraints on development for civil aircraft operations in accordance with their wishes.”
Under the heading Notification paragraph 14 provided that:
“All documentation relating to the operation of aircraft at MOD Farnborough must state that “Farnborough Aerodrome is a Government Aerodrome regulated by the Director of Flying…”.”
289. Returning to the services listed in Schedule 2, paragraphs 7 and 8 were concerned with radio and radar operation and maintenance, and provided for the MoD to decide whether any long term overhaul of equipment was to be carried out by TAG (8.4) and for such modifications and improvements to be undertaken (8.5) and redundant equipment disposed of (8.8) as the MoD might require. All equipment was to be installed, maintained and operated to standards laid down by the MoD’s Director of Flying. Fire and rescue services (10) and aerodrome maintenance (19) were to be to standards specified by the MoD while grounds maintenance (22), runway sweeping (29) and snow clearance (32) were to be in accordance with standards and procedures agreed in advance with the MoD. TAG was to control entry to the Aerodrome and provide security patrols including random patrols of “key Authority assets” (the control tower, fire station and hangars)(38). TAG was to provide advice and support to the MoD on aerodrome operations through an adviser “who understands both civil and military aerodrome operations” (41.1) and was to “agree with Director Flying DPA the transition from military to CAA regulation” (41.6). Further provisions relating to property maintenance and cleaning were contained in Schedules 3 and 6.
290. It is abundantly clear from the terms of the Management Contract that it was intended formally to place TAG’s management and control of operations at the Aerodrome under the supervision and direction of the MoD. TAG was a contractor providing specified services to the MoD either in accordance with instructions or standards agreed in advance or generally to the satisfaction of the MoD (and in particular to the satisfaction of the MoD’s Director of Flying in relation to air traffic services).
Arrangements on the ground
291. The evidence of how practical effect was given to the terms agreed between the parties was somewhat limited. TAG entered into the pre-negotiated contracts with Amey Comax, NATS and others with effect from 1 January 2000, and assumed responsibility for all of the outgoings of the Aerodrome from that date. Mr Wood’s employment transferred from DERA to TAG, as did that of other key Aerodrome staff with the result that no MoD staff were now employed at the Aerodrome. TAG’s contractors controlled access to the site and issued passes, although MoD passes continued to be recognised. The only MoD employees who visited the Aerodrome regularly were Mr Leslie Hunt, a Defence Estates surveyor based at Aldershot, and his line manager, Mr Jerry Upshall, who had an office close to the Civil Enclave. Mr Hunt gave evidence but it was apparent that he had had little to do with the running of the Aerodrome and was principally engaged in the disposal of other MoD assets on the fringes of the Aerodrome. Mr Upshall did not give evidence.
292. Flying from the Aerodrome continued to be under the regulation of the MoD, although this appears to have been done with a light touch so far as external inspection was concerned (there was one inspection by MoD inspectors during the two years of the Management Contract). No military aircraft were based at the Aerodrome but some very limited MoD flying continued to take place and the DERA flying club continued to operate (without paying any fee to TAG). The regulatory regime was that of the MoD rather than the CAA (although, as Mr Marks pointed out, that fact by itself does not mean that the MoD was in occupation, any more than the CAA is in occupation of Heathrow, Gatwick or other civil airports which it regulates).
293. The arrangements under which TAG paid for the use of the Aerodrome changed with effect from 1 January 2001. Before that date it was responsible for the rent and fees payable under the terms of the Civil Enclave underlease which it offset to some extent against the fees it charged for the use of the Civil Enclave. From 1 January 2001 TAG assumed responsibility for all of the running costs of the Aerodrome; these were very substantial and considerably greater than the underlease rents previously incurred. When the invitation to tender was received Mr Hedges of TAG estimated that the operating costs of the Aerodrome during 2001 would be in the region of £3.8 million (the underlease rents for 2000 would appear to have totalled £450,000 plus the full cost of weekend and bank holiday operations). The transfer of financial responsibility as a result of the Management Contract was clearly regarded by TAG as a significant benefit of the Contract as it envisaged that it would be able to achieve significant savings (approaching £500,000) by dealing directly with sub-contractors and suppliers rather than simply reimbursing the MoD for expenditure overseen by its civil servants.
294. The Management Contract was terminated by written notice given by the MoD to TAG on 16 January 2003, with retrospective effect from the date of grant of the CAA licence on 1 January 2003.
295. Several other matters were relied on by Mr Wald in support of the proposition that TAG was, in reality, the only entity in occupation of the Aerodrome after 1 January 2001.
296. Mr Wald first referred to obstacle clearance carried out by contractors instructed by the MoD in 1999 and 2000, which had previously been neglected and which was only done to assist TAG in securing a CAA licence. I accept that, contrary to the impression which the MoD sought to give to objectors to its programme of tree felling, these works were undertaken with a view to satisfying the requirements of the CAA. The work was controversial as some of the trees were the subject of tree preservation orders and TAG sought to distance itself from the obstacle clearance operation while its application for planning permission remained unresolved. In July 1999 TAG told its contractor that the MoD “was prepared to assist by lending its name to the works”, and Ms Bartaby told Mr Wood on 25 February 2000 that “all of those involved know that the MoD work is related to TAG’s proposal”. Nevertheless, I fail to see the relevance of the obstacle clearance programme to the question of occupation of the Aerodrome, especially as the work took place in 1999 and 2000.
297. Secondly, Mr Wald sought to establish in cross examination of Mr Hunt that TAG had assumed responsibility for the payment of a contribution in lieu of rates to the local authority. Mr Hunt did not believe this had occurred, nor did Ms Bartaby, but neither was in a particularly good position to know. Mr Hedges, who would have known but who did not give evidence, had said in an internal memo on 4 August 2000 that the running costs would include a contribution to the MoD for local authority rates. On the assumption that TAG did cover the MoD’s payment in lieu of rates it would have been in accordance with the terms of the Management Contract for TAG to pay all of the outgoings of the Aerodrome. Nevertheless, it is common ground that the Aerodrome was not included in the non-domestic rating list until after the grant of the lease in February 2003, from which it can be inferred that neither the MoD itself nor (if any thought was given to the matter) the local valuation officer considered that the MoD has ceased to occupy and that TAG was now in rateable occupation.
298. Mr Wald relied on the fact that, immediately on assuming responsibility for the management of the Aerodrome under the Management Contract TAG announced a ban on the use of the Aerodrome by “Chapter II” aircraft (generally older and noisier aircraft). I do not regard this as significant. A ban was due to come into force in any event as a result of EU legislation with effect from March 2001 and the acceleration of the ban seems to have been a public relations gesture originating in discussions with the local planning authority over the annual ATM limit before the grant of outline planning permission in October 2000. More importantly, as Ms Bartaby explained, the ban applied only to civilian flights, and not to military or diplomatic traffic which continued to use the Aerodrome. As all civil flights operated through the Civil Enclave and relied on TAG’s Aircraft Rights for access to the runway, TAG had always been in a position as underlessee of the Enclave to restrict the use of the Aerodrome by civil aircraft of any type it chose. The decision to ban Chapter 2 Aircraft was therefore not a demonstration of TAG’s control over the use of the Aerodrome, but rather an illustration of the limits of its rights.
299. Mr Wald also placed reliance on the fact that Ms Bartaby had acknowledged in her exchanges with Mr Scott in November 2002 that it was possible that TAG might be the responsible authority as it was managing the Aerodrome. I do not consider that Ms Bartaby’s inconclusive view can have any weight in the resolution of this issue, nor do I accept that, as the claimants suggested in their closing submissions “there is no dispute that TAG is the “responsible authority”; nobody has suggested that the MoD is liable to pay compensation but if the MoD was in occupation it is common ground that the Act will not have applied and therefore there will have been no “responsible authority”. Nor do I place weight on a letter from Mr Wood to the CAA in November 2002 in which he said that “the Farnborough AIP entry has already been amended and there is now no mention of its former status as a MoD airfield”. The letter appears to have been about a forthcoming publication, the Aerodrome Manual, and does not state that the amended AIP had already been published (the latest AIP I was shown was dated 1 November 2001 and was incomplete, but advised reference to the “Military AIP” for details of aerodrome obstacles). Assuming that the AIP anticipating the end of the Aerodrome’s MoD status was in public circulation in November 2002 it would not have been inconsistent with the contractual arrangements for coordination of the handover from MoD to CAA regulation. In my judgment it sheds no light on the issue of MoD occupation, other than to confirm that it was nearing its end.
Conclusion
300. In his closing submissions Mr Wald summarised the claimants’ case on occupation in this way:
“No matter any subsisting proprietary right or contractual right which the MoD held in the aerodrome or the technical detail of TAG’s interest, it is clear as a matter of fact and common sense that TAG, which managed the aerodrome as a whole at all relevant times, footing the (vast) annual bill for its operation, and managed and paid for the entirety of the works at even greater expense and entirely for its own benefit, was in occupation of the aerodrome from January 2001 and the MoD was not for the purposes of the Act.”
In the absence of any suggestion that the contractual arrangements between the MoD and TAG were a sham which did not represent their true relationship, I do not accept that the question whether the MoD was in occupation can be determined by so visceral an appeal to common sense. Nor do I accept that it is legitimate to aggregate the different capacities in which TAG related to the Aerodrome between 1 January 2001 and 31 December 2002 and to conclude that it and not the MoD was in occupation. TAG derived distinct rights from three distinct sources but the totality of those rights (and their effect on the rights of the MoD) cannot have exceeded the sum of its parts. If none of the individual contracts excluded the MoD from occupation I do not see how cumulatively they can have had that effect.
301. As I have sought to explain, TAG had rights of access to the Aerodrome under the Agreement for Lease and enjoyed the Aircraft Rights under the Civil Enclave underlease, but these rights were limited and neither amounted to a right of occupation; nor was either the Agreement for Lease or the underlease inconsistent with the continuing occupation of the Aerodrome by the MoD. I am also satisfied that the Management Contract conferred no greater status on TAG that that of a contractor or agent, carrying out activities at the Aerodrome on behalf of its principal. Aircraft moving from the Civil Enclave to the Aerodrome passed from TAG’s direction and control into the direction and control of the MoD, exercised on the MoD’s behalf by its contractor TAG. Through the presence of TAG as its contractor, and through its own equipment and vehicles, the MoD was physically present on the Aerodrome. Through its contractor, TAG, the MoD controlled access to the Aerodrome and supervised the movement and safety of aircraft. TAG’s occupation of the Aerodrome under the Management Contract was occupation by the MoD, which did not cease until 1 January 2003. Only then did TAG achieve satisfaction of the conditions precedent to the grant of the Aerodrome Lease and become entitled to an interest sufficient to exclude the MoD from occupation.
302. It follows that I am satisfied that the Aerodrome was in the occupation of a government department on the relevant dates for the purpose of the runway extension, 10 June 2002, and the completion of the North Apron, 11 October 2002, and that as a result of section 84(1) of the 1973 Act no claim for compensation is available to the claimants in respect of those works.
303. As a result of my conclusion that TAG is not estopped from asserting a different relevant date from that which the claimants had assumed, it is not relevant to consider whether the MoD was in occupation on 1 January 2003. Had I been satisfied that 1 January 2003 was the relevant date (so that the claimants did not have to rely on their estoppel argument) I would also have been satisfied that, on that date, the MoD was no longer in occupation. The Management Contract was terminated at the end of the previous day to coincide with the commencement of CAA licensing, and for the first time TAG assumed responsibility on its own behalf and free of MoD control.
304. If, contrary to my conclusion on issue 5(b), I had been satisfied that the claimants were entitled to the benefit of an estoppel preventing TAG from asserting that the relevant date was earlier than 1 January 2003 for the purposes of limitation, it would have remained to be considered whether the effect of that estoppel was also to prevent TAG from relying on the true relevant dates for the purpose of determining whether the MoD was then in occupation and the section 84(1) defence was made out. From the earliest exchanges (although not in the section 15 statement itself) TAG has asserted that it was entitled to the benefit of the section 84(1) defence and I would therefore have taken considerable persuasion before being prepared to accept that the representation made by Ms Bartaby was understood or relied on by the claimants as inhibiting TAG’s entitlement to make the fullest use of that defence, or that it included any representation that the relevant inquiry for the purpose of section 84(1) should focus only on the state of occupation of the public works at the relevant date (rather than when the works were carried out). In light of my previous conclusions it is not necessary for me to say anything further on that issue.
305. I have not reached these conclusions without fully appreciating that to many of the claimants they will appear at best legalistic and at worst capricious. I accept that it was not the intended purpose of the immunity conferred on government departments by section 84(1) that its protection should embrace a private company undertaking work at an aerodrome for its own benefit in anticipation of the imminent cessation of the occupation of that aerodrome by the government department whose presence causes the immunity to apply. It will be no comfort to the claimants that at least one other aspect of the application of Part 1 of the 1973 Act to aerodromes has been described in the Court of Appeal as “something of a blunt instrument which will produce what may seem to be unfair, or even inconsistent results in some circumstances” (per Neuberger LJ in Brunt at [41(i)]). My own conclusions on the application of section 84(1) will understandably seem to them to be a further example of such a result.
306. I therefore answer issue 2 in TAG’s favour.
Conclusion on Johnston references
307. Although I have concluded (a) that the works on which the claims are based are “runway or apron alterations” within the meaning of section 9(6) of the 1973 Act, and (b) that the claimants served valid notices of claim, I have nevertheless found (c) that the Johnston references were commenced after the last permissible date, (d) that any claim in respect of the runway extension and North Apron is barred by section 84(1) of the 1973 Act, and (e) that no estoppel can be relied on by the claimants to overcome these obstacles, and I therefore dismiss the remaining Johnston references.
Postscript: applications to strike out or withdraw references by unrepresented claimants
308. At a case management hearing on 18 May 2015 TAG applied to strike out the claims of unrepresented claimants who had not taken any active part in the references or responded to correspondence for many years. As there was doubt whether the unrepresented claimants had been properly served with notice of the application it was adjourned to the first day of the hearing. None of the unrepresented claimants attended the hearing, but a number wrote to the Tribunal after receiving a letter from Herbert Smith informing them of the application to strike out their references. A number of these claimants asked that their references be treated as having been withdrawn.
309. Rule 20 of the Tribunal’s rules permits a reference to be withdrawn with the consent of the Tribunal at any time before a hearing or orally at a hearing. The consent of the Tribunal is not required where the other parties consent to withdrawal. Notice of withdrawal was received by the Tribunal from Mrs Avril Wood on 3 July 2015 (before the hearing commenced) to which I give consent. Since the commencement of the hearing Herbert Smith Freehills, on behalf of TAG, have consented to the withdrawal of references by RCR Mallows, Ms Helen Petley and by the personal representatives of Mrs Patricia Lowe. Hugh James have raised no objection to those withdrawals on behalf of the represented claimants (in each case on condition that any costs of their references are addressed in accordance with the Tribunal’s costs sharing order made on 6 November 2014) and they are treated as having been withdrawn. Mrs K Liddington, Mr Brian Slade, and Mrs G Cox have reached agreement with TAG for the dismissal of their references.
310. Given the conclusion I have reached in Johnston I see no point in striking out the remaining references by unrepresented claimants. They are dismissed on the same grounds as the references by the represented claimants.
311. I can now turn to the issues raised by the five references commenced by notices of reference delivered to the Tribunal on 22 July 2013 by Mr Dandy, Mr and Mrs Rycroft, Ms Bellamy, Mr and Mrs Brooks, and Mr and Mrs Adams, and referred to collectively as the Dandy references. I have already listed those issues, and the order in which I intend to consider them, at paragraph 124 above.
Dandy issue 4: Are the works on which the Dandy claims are based (or any of them) “runway or apron alterations” within the meaning of section 9(6) of the Act?
312. The runway and apron alterations relied on by the claimants in the Dandy references are the following:
(1) The 40m runway extension and the construction of the 150m starter strip, which were completed in June 2002, and which I have already found to be runway alterations within the meaning of section 9(6).
(2) The construction of the two new three-bay hangars, Hangar One completed in November 2002, and Hangar Two in October 2011. I have already found that the construction of a hangar is not a runway or apron alterations within the meaning of section 9(6).
(3) The construction of the North Apron (including the areas known as the Hangar One ramp, the Terminal ramp and the Tower ramp), completed in October 2002, and which I have already found to be an apron alteration within the meaning of section 9(6).
(4) The construction of the new West One Apron, which was commenced in September 2009 and completed and first used on 28 May 2010.
(5) The infilling of the site of the former C Shed, and its incorporation into the West One Apron achieved on 6 July 2012, following the completion of the new Ground Support Facility building to replace C Shed.
313. In the light of the conclusions I have already reached in the Johnston references, it is only necessary for me to consider the Dandy claimants’ case concerning the West One Apron and the site of C Shed. Once again the issues between the parties concern the substantiality of the West One Apron works, the purpose or main purpose for which the works were undertaken and whether that purpose can be said to have been the provision of facilities for a greater number of aircraft, as required by section 9(6)(b).
314. The West One Apron provided an additional 12,800m2 of apronage, increasing the area of the former West Apron available for parking and loading aircraft from 19,800m2 to 32,600m2.
315. TAG contended that the expanded apron did not amount to a “substantial” alteration or addition for three reasons. First, it was not a substantial addition in comparison to the total apronage at the Aerodrome which was now 102,700m2, comprising the North Apron (46,500m2), West One Apron (32,600m2), Delta Ramp (8,900m2), and East Apron (22,700m2). Secondly, the total apronage now available remained less than the 108,500m2 said to have been available in April 2001, before any works of modernisation at the Airport. Finally, the majority of the additional apronage at the West One Apron was to the north-west of the taxiway and immediately in front of Hangar Two, which meant that it was generally required to be kept free of parked aircraft to facilitate movement into and out of the Hangar.
316. I reject this reasoning and am satisfied that the addition of an extra 12,800m2 of wide, clear, modern apronage was both a substantial addition and a substantial alteration. It added more than 12% to the available apronage in a convenient location close to the terminal building and Hangar Two. I do not regard consideration of the area of apron available in 2001 as relevant to the assessment of the substantiality of work commenced in 2009. Nor does the fact that the new apron is in front of the new hangar detract from its substantiality. As I observed when I visited the Aerodrome, the area immediately outside Hangar Two is used for preparing aircraft for take-off and for short term parking.
317. I do not regard the incorporation of the footprint of C Shed into the West One Apron in July 2012, following the demolition of the shed, as having been a substantial alteration or addition in its own right. If a claim is advanced on the basis that this work is properly regarded as the completion of a single West One Apron alteration it would bring the date of completion and first use of the completed apron forward to July 2012. If it is viewed in isolation as a further alteration or addition to the existing apronage, it is insubstantial and falls outside the scope of section 9(6)(b). Whether a claim includes or excludes the footprint of C Shed is a question of construction of the notice of claim and the subsequent reference to the Tribunal.
318. As to the purpose of the works, I have already explained that an assessment of the purpose of an alteration ought not to focus on a comparison between an aerodrome’s theoretical maximum capacity before the works and its theoretical maximum capacity after their completion as TAG sought to persuade me, relying on the decision of the Court of Appeal in Brunt.
319. Mr O’Reilly explained in his evidence that the maximum capacity of an airport was reached when aircraft struggle to park, manoeuvre, take off and land. I do not accept that alterations which do not increase that theoretical maximum must, in principle, fall outside the scope of section 9(6)(b). An aerodrome may not in practice achieve its maximum capacity because parts of its infrastructure are limited or unattractive, or because it serves a limited market, or because movement towards that maximum capacity would have unacceptable consequences for the standard of service capable of being delivered; if the main purpose of alterations is nevertheless to increase the number of ATMs which the aerodrome achieves within the previous theoretical maximum by providing more convenient aprons or taxiways, I can see no reason for regarding those improvements as outside the scope of section 9(6)(b). Of course I accept that the “throughput potential” of the Aerodrome is highly relevant, and that the capacity for intensification of traffic without works is also important, but those assessments must be realistic. In assessing the objective consequences of the alterations undertaken by the operator it is also material to have regard to the operator’s own intentions and expectations, as Neuberger LJ explained in Brunt at [51].
320. The background to the improvement of the facilities at the Aerodrome was TAG’s desire better to satisfy the requirements of its current and prospective customers. This was the motivation for TAG’s application in 2005 to increase the number of weekend ATMs from 2,500 to 5,000, which was eventually acceded to by the Secretary of State in March 2008. Condition 8 of this new outline permission provided for the increase in weekend activity to be phased in, with a maximum of 4,200 weekend ATMs in 2008 and 5,000 during and after 2009. It was also the motivation for TAG’s application in 2009, eventually approved by the Secretary of State in February 2011, to increase the total number of permitted ATMs from the 28,000 settled by the Local Plan adopted by Rushmoor in 2000 to a new level of 50,000 ATMs (of which 8,900 could be at weekends and bank holidays).
321. When Mr O’Reilly was first appointed as TAG’s CEO in January 2007 he had commissioned a study by NATS to model the number of ATMs which the existing facilities could accommodate. The study concluded that assuming a daily throughput equivalent to the highest then achieved (133 ATMs in a single day) the taxi times were not excessive and delays were minimal. The introduction of towing allowed this figure to increase to 187 ATMs per day while maintaining acceptable levels of service (TAG does not generally favour towing as it interferes with the “seamless service” which Mr O’Reilly described). Both of these assumed levels of activity substantially exceeded the 28,000 ATMs permitted by the October 2000 and March 2008 outline planning permissions, although they did not take into account other important limiting factors including noise contours and the assessment of third party risk.
322. The NATS study also modelled the effect of completing the West One Apron and Hangar Two and found that the throughput capacity increased to 277 ATMs per day giving a theoretical maximum (again ignoring noise contours, third party risk and other limitations) in excess of 100,000 ATMs per year. Because the model did not take into account important limiting factors Mr O’Reilly’s conclusion that it demonstrated that the Aerodrome could accommodate up to 100,000 ATMs efficiently was rightly described by him as theoretical. Within that same theoretical framework Mr O’Reilly agreed with Mr Burton’s suggestion in cross examination that the construction of the West One Apron and Hangar Two added tens of thousands of additional ATMs to the Aerodrome’s capacity without adversely affecting standards. He also explained, and I accept, that “because TAG’s priority is to ensure a premium customer service, hangarage availability and quick turnaround times will always be a more important limiting factor on growth” than the capacity of aprons. Hangarage capacity was particularly important to business customers, who often wanted to keep their expensive aircraft protected from the elements, and were prepared to pay well for hangar space. By 2007 Hangar One was becoming uncomfortably full and the desire to capitalise on the demand for hangar space was the driver behind the construction of Hangar Two. But, as Mr O’Reilly explained, aprons were also important, especially aprons located conveniently for easy access to the terminal building. It was in that context that TAG had been concerned that apron capacity may become a limiting factor on capacity in the future.
323. Continuing real growth in the short and medium term was undoubtedly within TAG’s contemplation, as the 2001 Business Development Plan and the 2005 and 2009 applications to increase the permitted ATMs demonstrate. I accept that the construction of Hangar Two and the West One Apron were not a direct consequence of the application to increase the number of ATM’s to 50,000 per year, but TAG’s overall strategy was to provide better facilities and to attract more aircraft. In public TAG’s 2009 master plan forecast that unmet growth in business aviation in the south east of England would reach 136,000 ATMs a year by 2019. The proposed increase in the annual ATM limit at Farnborough to 50,000 would enable it to absorb a further 22,000 of this unmet ATM demand by 2019 and would consolidate the Aerodrome’s position as the largest business airport serving that market. Looking further into the future growth remained on TAG’s agenda. In a section of the 2009 master plan entitled Indicative Proposals 2020 to 2030 TAG anticipated that, in that period:
“… it is likely that the Airport will continue to strengthen its role as the leading European Business Aviation airport. Given the forecast growth of Business Aviation and the Airport’s unique position as a dedicated Business Aviation airport, it is possible that further expansion of the use of the Airport will be sought in the period 2020 to 2030.”
324. In private, TAG was noticeably less coy about its intentions. Its board was updated on the progress of the draft master plan in October 2007 and informed that further discussions had taken place with experts “on the best way forward for the Airport to proceed and achieve its objective of ATM expansion and profitability.” Hangar One having reached full capacity was “a major constraint in encouraging further operators to use Farnborough as a base”. TAG’s October 2007 business case for the construction of Hangar Two and its associated West One Apron projected year on year growth in ATMs of at least 10% from 2010 to 2015 by which time the proposed ceiling of 50,000 ATMs would be reached. Senior members of Rushmoor Borough Council were reported to the Board as having acknowledged that “Farnborough Airport does need to expand”. The picture is consistent with the aspirations TAG had explained to prospective lenders in its 2001 Business Development Plan (see paragraph 166 above).
325. I am therefore satisfied, as I was in relation to the original phases of the development of the Aerodrome and for substantially the same reasons, that the construction of the West One Apron was an apron alteration within the meaning of section 9(6)(b). Its purpose was inseparably bound up with TAG’s objective of creating a premier business airport by providing high quality facilities to attract additional aircraft to the Aerodrome. The attempt to dissect TAG’s motivation and to identify customer satisfaction and quality of service as the main purpose of TAG’s endeavours is unpersuasive and ignores the commercial imperative of growth beyond the levels previously achieved or capable of being achieved without improved facilities.
326. Accordingly I answer Dandy issue 4 in the claimants’ favour, with the exception of the construction of the two Hangars.
Dandy issue 5: Can the works carried out in 2001 and 2002, and the works carried out between 2008 and 2012, be regarded as a single set of runway or apron alterations?
327. This issue is at the heart of the claimants’ case in the Dandy references. The claim notices served on behalf of the Dandy claimants (the earliest of which were in October 2011, with others in June 2013) assert that the works which give rise to the claims are:
“All runway and/or apron works and/or alterations carried out pursuant to the outline planning permission granted on 11 October 2000 by Rushmoor Borough Council … and any consequential permissions (i.e. varied permissions pursuant to section 73 Town and Country Planning Act 1990) within the meaning of the Land Compensation Act 1973.”
328. The Dandy claimants assert that all of the works carried out pursuant to the outline planning permission of October 2000 amounted to a single set of runway or apron alterations for the purpose of section 9(3) of the 1973 Act or, to use their shorthand, a single “scheme”. They also assert that they may therefore bring a single claim encompassing the whole of those alterations, for which the relevant date will be the date of completion of the last of the alterations and the first use of the Aerodrome thereafter. These assertions are the outflanking manoeuvre by which the Dandy claimants hope to by-pass the difficulties created for the Johnston claimants by TAG’s limitation defence and its reliance on section 84(1).
329. On first encountering the proposition that all of the works carried out at the Aerodrome ought properly to be regarded as a single package of runway or apron alterations it appears innovative and surprising. On behalf of TAG, Mr Village QC was not so restrained, denouncing the claimants’ argument as “wholly unrealistic sophistry, unsupported by case-law, and of no logical coherence or substantive merit”.
330. It is quite true that the whole programme of work was envisaged and carried out pursuant to a single planning permission, albeit one which was effectively re-granted as a result of variations in 2008 and 2011, but among the factors relied on by TAG as militating against the claimants’ approach are the following.
331. First, the relevant alterations were not carried out as part of a continuous programme of work but with a break of at least five years between the completion of the North Apron and the decision, taken in October 2007, to proceed with the next phase of development undertaken between October 2008 and June 2010. It is true that other work which does not give rise to an entitlement to compensation was carried out in the early years of that gap: the completion and commissioning of the control tower in 2002 and the new terminal building in 2005 were major enterprises; the conversion of C, N and D Sheds from their original use as hangars to use for engineering or equipment storage during 2003 were less substantial, as was the demolition of Q Shed in October 2003; and the “conversion” of former taxiways to provide apron space involved no work. Despite these encroachments on the interval between the completion of the first works capable of giving rise to an entitlement to compensation and the commencement of the next, the relevant interruption spans a full five years at least.
332. Secondly, Ms Bartaby told me, and I accept, that by the time she left TAG in May 2005 no decision had yet been taken by the board to proceed with Hangar Two and the reconfiguration of West One Apron. Nor had the decision yet been taken by the time Mr O’Reilly arrived to take over as CEO in January 2007. Looked at from TAG’s point of view these were distinct projects.
333. Thirdly, the alterations were undertaken in different parts of the Airport. The runway extension and starter strip are at least 450m from the North Apron and at least 300m from the West One Apron. No alterations to the runway were carried out in the later phase of works.
334. Fourthly, different contractors were engaged on the various phases of work, each of which was the subject of distinct contracts.
335. Finally, TAG had acquired the freehold of the Aerodrome from the MoD on 5 December 2007 and, as I have found, the MoD was in occupation of the Aerodrome during the earlier phase but not the later.
336. The foundation of the claimants’ case on this issue is the decision of the Lands Tribunal (J H Emlyn Jones FRICS) in Davies v Mid Glamorgan County Council (1979) 38 P & CR 727, which concerned a claim for compensation under Part 1 of the 1973 Act arising out of alterations made to the runway, taxiways and apron at Cardiff Airport. The alterations were the subject of a single planning permission but they were carried out and brought into use in three phases. Phase 1 involved the strengthening of part of the existing runway and its extension at its south-eastern end, and was completed between August 1968 and March 1970. Phase 2 comprised strengthening and other works at the opposite, north-western end of the same runway, and was undertaken between June 1970 and April 1971. Phase 3 was the construction of a new apron and new taxiway, and a new terminal, and commenced at the same time as Phase 2 but was not complete until November 1972.
337. The issue for the Tribunal in Davies was whether (as the claimant contended) the three phases of work gave rise to a single claim for compensation which first crystallised a year after the completion of phase 3, and was to be valued by reference to values at that date, or whether (as the compensating authority argued) each phase represented a discrete runway or apron alteration and ought to be the subject of a distinct claim for compensation. The resolution of that issue was of considerable financial significance: if the diminution in the value of the claimant’s house as a result of all three phases was to be valued as at November 1972, the agreed compensation was £1,600; if diminution was to be valued in three distinct phases, each with a different valuation date, the compensation was reduced to £700. (Without attributing special significance to it, it should be noted that the 1973 Act was materially different at that time, as section 2(2) required claims to be brought within two years of what is now referred to as the first claim date).
338. The Tribunal found the case troublesome, and was clearly influenced by the difficulties of valuation which it felt would be created if depreciation had to be attributed to different stages of an extended programme of works (although this had clearly not been an insurmountable difficulty for the parties in that case as they had agreed the amount of compensation on both alternative approaches). The Tribunal was also influenced by the fact that compensation for injurious affection to retained land following compulsory purchase of other land for the purpose of works is determined under section 44 of the 1973 Act (a provision to be found in Part 4 of the Act) “by reference to the whole of the works and not only the part situated on the land taken”. The Tribunal thought it illogical to approach compensation under Part 1 of the Act on a different basis.
339. The core of the Tribunal’s reasoning in Davies appears in the following passage, which seems to me to embody a decision based closely on the facts rather than on any statement of legal principle:
“There was in the instant case a decision taken to extend the airport in order to meet changing circumstances. Mr Roots accepts that there is a single scheme, as that word has been interpreted under the compensation code, but seeks to distinguish between the scheme and the alterations. I do not think that any such distinction can be drawn. The alterations to the airport are the scheme, and the break-up of the scheme into separate phases does not, in my judgment, alter the functional unity of the whole. It will be seen that the work on phase 2 and phase 3 started at the same time and although the work on the apron continued for about 18 months after the strengthening of the runway had been completed it seems quite unrealistic to me that these works, included in the same contract and carried out by the same contractor, should be described as two alterations rather than as part of a single programme of alterations. At the time when the work on the runway was completed, but the work on the apron was still in progress, I do not think it can properly be said that the alterations to the airport had been completed.”
340. I do not think Davies establishes any principle of relevance to the Dandy references. It turned on a consideration of the functional unity of the works concerned and the overlapping of the later phases. The conclusion that works undertaken in close succession at opposite ends of the same runway and, simultaneously, on the creation of a new apron, amounted to a single set of alterations to the airport is unsurprising. The consequence of the conclusion that the alterations were not complete until phase 3 was complete is that no valid claim could have been based on any single phase of the works.
341. Nor does Davies provide any justification for importing the concept of a single “scheme” into Part 1 of the Act. Part 1 is concerned with public works, alterations to public works and changes of use of public works and no reference to a “scheme” is to be found in any of its provisions. While it may become necessary to consider the extent of any scheme of which the public works or their alteration or change of use form part when assessing compensation, to adopt that terminology at any earlier stage is an inappropriate distraction.
342. In Price v Caerphilly County Borough Council [2005] 1 EGLR 157 the Lands Tribunal (George Bartlett QC, President) made much the same point. A new road had been constructed in phases. The claimants’ property was affected by the opening of the earliest of these phases (section C-D), but the claimants had waited more than seven years from that opening before bringing claims for compensation under Part 1 of the 1973 Act. In order to overcome the defence of limitation relied on by the local authority the claimants argued that they were entitled to wait until the whole “scheme” had been completed before commencing their claim, and that later phases of the new road had been completed within seven years of their claims being launched. Davies was relied on as showing that a scheme is not complete for the purpose of a Part 1 claim until all elements of it are complete, but the Lands Tribunal found the reference to a scheme unhelpful:
“30. I do not think that the concept of the scheme as developed in cases on compensation for the compulsory acquisition of land can have any direct relevance to the quite different set of statutory provisions that apply in the present case, although in some circumstances it may provide a useful analogy. In Davies v Mid Glamorgan County Council this Tribunal (J H Emlyn Jones FRICS) relied on the concept of the scheme in holding that various works at Cardiff (Rhoose) Airport should be treated together for the purposes of claims under Part I. I do not find that case to be of assistance in the quite different circumstances of the present case…”
The Tribunal went on to consider how the relevant extent of the public works, in that case the highway, should be identified:
“31. It is of course the case with any road that, while a house owner will only be affected by traffic on a particular limited section of highway, the volume of traffic, and hence the degree of disturbance, will depend on the nature of the highway system as a whole. As parts of the system are altered, the volume of traffic may change. Part I of the 1973 Act, as it applies to highways, gives a right to compensation for depreciation caused by noise etc arising from the use of a highway, and this must mean, it seems to me, the use of that part of the highway network from which the noise etc arises. Highway as defined includes part of a highway, and thus the question to be asked when determining the relevant date is when that part of the highway from which the noise arises was first open to public traffic. In relation to those of the present claims that are founded on the use of section C-D and the noise etc arising from it, it is that section and not the road as a whole that constitutes the highway for the purposes of these provisions.”
343. It is also relevant to recall Neuberger LJ’s analysis of the statutory provisions in Brunt at [35]. Having referred to section 4(2) of the 1973 Act and the relevance for compensation of any intensification in the use of the public works which was reasonably to be expected, he pointed out that:
“Fourthly, when assessing that intensification, it seems to me that … one must exclude the possibility of any intensification which would result from the carrying out of future apron alterations which fall within s. 9(6)(b), because, if and when carried out, those alterations would themselves found the basis for a fresh claim for compensation under that very provision.”
344. In the case of a claim based on runway or apron alterations carried out at an aerodrome it is for the claimants to identify the alterations or change of use alleged to give rise to the depreciation of their property by specifying it in the notice of claim (section 9(4), 1973 Act). Whether the alterations so specified amount to a single alteration or programme of alterations, or whether they are properly to be regarded as a series of distinct alterations is an issue of fact the answer to which the claimant is not entitled to dictate. If the alterations relied on by the claimant have been carried out in phases, and if one or more of those phases was completed and first used more than seven years before the date of the claim, the claimant’s choice to identify the alterations as a single programme of works cannot deprive the responsible authority of the benefit of the limitation defence contemplated by section 19(2A). Similarly, if a single phase of works has been completed and brought into use, causing noise or other physical factors which depreciate the value of an interest in land, it would be no answer to the resulting claim for compensation for the responsible authority to say that the claim was premature because further alterations to the same public works were being undertaken in phases and had not yet been completed.
345. Whenever public works are first used following their construction or alteration the ingredients of a claim under Part 1 of the 1973 Act exist in respect of any diminution in the value of land caused by resulting noise, fumes or other physical factors. That claim may be brought at any time from the anniversary of first use until six years after that date and will then become barred by limitation. No further phase of work carried out after the completion and first use of the original alterations can re-set the limitation clock for that claim, although further claims may arise from subsequent phases.
346. In the case of entirely new public works it is unlikely to be difficult to identify the date on which they were completed and first used. Where public works are altered it should not be more difficult, even where the works have remained in use while the alterations have been carried out. In this case the various alterations have been taken to be complete on the date of practical completion certified under the relevant building contracts, which provide an obvious point of reference. As the responsible authority is under the duty imposed by section 15(1) to keep a record and provide a statement of the date on which the works were first used after completion of any particular alterations, the statute provides a means of achieving certainty.
347. Only exceptionally should it be in either party’s interests to consider whether alterations carried out in phases give rise to a single claim or to more than one claim, but it may be necessary to do so in cases where there is a limitation defence to part of the works said to constitute a single alteration (Price), or in times of rapidly changing values (Davies), or where the land in question has changed hands. In most such cases it is likely to be obvious whether alterations have been completed and first used at the end of one or more phases of work. Where work has been carried out in phases it should not be necessary for there to be more than one reference as separate phases could be combined in a single reference if the claimant so chose.
348. In this case I do not accept that the runway and apron alterations completed in June and October 2002 formed part of a single runway or apron alteration which was not complete until May 2010 when the West One Apron was first brought into use. The claimants acknowledged that this was a question of fact. The fact that the runway alterations, the North Apron and the West One Apron were each permitted by the outline planning permission granted in October 2000 is an incidental detail of no significance when the lapse of time between the earlier and later phases is considered. The other matters which I have previously referred to as militating against the claimants’ approach seem to me to be of lesser significance. It was not suggested by the Dandy claimants that it was not open to them also to bring claims based on the 2001-2002 works alone (as indeed some, if not all, had done as participants in the Johnston references). They were right not to suggest that for the reason that the earlier works gave rise to a separate cause of action in 2003 which had long since expired by the time the Dandy references were commenced. It was not open to the claimants to revive those barred claims by attaching them to the much later alterations for which compensation is claimed in the new references.
349. For these reasons issue 5 is determined in TAG’s favour.
Dandy issue 6: What was the “relevant date” (or “relevant dates”) for the purpose of the Dandy claims?
350. The identification of the relevant date follows from my previous conclusions.
351. The relevant dates of completion and first use of the alterations relied on in the Dandy proceedings which I am satisfied are runway or apron alterations within the meaning of section 9(6) are as follows:
June 2002 for the runway extension and starter strip;
October 2002 for the North Apron; and
28 May 2010 for the West One Apron (excluding the site of C Shed) or 6 July 2012 if the site of C Shed is included in the claim.
352. It was argued by Mr Village QC that the only relevant date for the purpose of the West One Apron was 6 July 2012 whether or not a claimant chose to include the incorporation of the site of C Shed as part of their claim. This was on the basis that the decision to proceed with the construction of a new ground support facility building followed by the demolition of C Shed was taken in October 2008, at around the time the West One Apron works commenced (those works having been the subject of an earlier decision). The relevant reserved matters application under the 2008 outline planning permission was made on 16 June 2010 and granted on 14 October 2010, at a time when construction of the Hangar Two superstructure was commencing. The new ground support building was completed on 8 March 2012, within a month of the completion of Hangar Two, and it was then possible to demolish C Shed and “round off” the new apron by incorporating its former footprint into the apron and making it available for use from 6 July 2012.
353. I do not accept that the only relevant date for the West One Apron is the date of its first use after incorporation of the site of C Shed. The Apron was complete and in use on 28 May 2010. It remained in use for almost two years before TAG was in a position to carry out further work to enlarge it. The enlargement is modest and for that reason it is not in itself a runway or apron alteration within the meaning of section 9(6)(b). I see no reason why a claimant should be required to wait until that further extension was incorporated before bringing a claim for compensation arising out of the completion of the West One Apron in its original form. It is not now necessary for me to decide whether a single claim could be brought in relation to the West One Apron including the C Shed footprint, because TAG accepts that it could (and indeed asserts that it is the only potential basis for such a claim). In my judgment it would therefore in principle have been open to the Dandy claimants to bring a claim either on the basis of the West One Apron as it was completed and first used on 28 May 2010, or on the basis of the extended apron as used for the first time on 6 July 2012. However, for reasons which will become clearer when I consider issue 3, I am satisfied that none of the Dandy references yet includes a claim for compensation for the effects of the West One Apron as it was extended in 2012 by the incorporation of the footprint of C Shed. If the claimants wish to bring such a claim they will have to apply to amend their proceedings and if permission was granted it would be open to TAG then to argue that the 2012 work was a distinct alteration.
354. For their part the claimants advanced at first three but eventually four alternative relevant dates. Two of these (3 October 2011 and 7 February 2012) depended on the date of completion of Hangar Two (which was in dispute between the parties). I have already determined that Hangar Two is not a runway or apron alteration and its date of completion is therefore irrelevant. The claimant’s third relevant date was pleaded as 6 July 2012, on the basis that the alteration included the footprint of C Shed. The claimant did not initially plead that the original date of the completion of the West One Apron was an alternative relevant date but, with TAG’s agreement, I granted permission for it to amend its statement of case to that effect during the hearing (the date suggested was June 2010 but I am satisfied on the evidence that 28 May 2010 was the correct date).
Dandy issue 1: Are the claims (or any part of them) barred by limitation?
355. The resolution of this issue follows from my conclusions on issues 5 and 6. The Dandy references were commenced on 22 July 2013, and any alterations in relation to which the relevant date was earlier than 22 July 2006 are barred by the six year limitation period provided by section 9 of the Limitation Act 1980 which began to run on 23 July 2007, that being the first claim day permitted by section 3(2) and the day on which the right to claim compensation accrued.
356. It follows that the claims in respect of the runway extension and starter strip and the North Apron are defeated by the defence of limitation, and that only such depreciation in the value of the claimants’ interests in their homes as can be shown to have been caused by the addition of the West One Apron (with or without the site of C Shed) can properly be the subject of claims for compensation.
Dandy issue 2: Are any parts of the claims barred by section 84(1) of the Act?
357. The answer to this issue is academic, given my conclusion on limitation. Had the issue been live I would have determined, as I did in the Johnston references, that no claim could be brought in respect of works carried out before 1 January 2003 because, until that date, the MoD was in occupation of the Aerodrome.
Dandy issue 3: Did the Claimants (or any of them) have “qualifying interests” at the material times entitling them to claim compensation under the Act?
358. It was not suggested that the claimants had failed to serve notices of claim which were, in form, sufficient to sustain the Dandy references. Instead it was argued that the claimants did not have interests qualifying for compensation within the scope of section 2 of the 1973 Act. In the case of land which is a dwelling, an interest will only qualify for compensation if the following conditions are satisfied:
(1) it must have been acquired by the claimant before the relevant date (section 2(1));
(2) on the date on which notice of the claim for compensation is served the interest is either the legal fee simple, or a tenancy for a term of years certain of which not less than three years remain unexpired (referred to as “an owner’s interest”) (section 2((2)(a) and 2(4));
(3) on the date on which notice of the claim for compensation is served, if the interest carries the right to occupy the land, the land is occupied by the claimant in right of that interest as their residence (section 2((2)(b)).
359. TAG’s pleaded case on this issue was that the claims were premature. It turned on the proper identification of the relevant date and the first claim date, and on the proposition that, until the incorporation of the footprint of C Shed into the West One Apron, the apron alteration was not complete. I have already dismissed the suggestion that the relevant date in relation to the West One Apron was 7 July 2012 and Mr Village’s submission that all of the notices of claim relied on were invalid because they pre-dated a first claim day of 9 July 2013 must fall with it.
360. Mr Village also submitted that Mr Dandy’s claim must be dismissed because he had sold his former home at 26 Pirbright Road on which he bases his claim on 7 October 2011. I disagree. Mr Dandy’s notice of claim was given on 5 October 2011 on the basis of all runway and apron alterations carried out up to that date. Such alterations did not include the incorporation of the site of C Shed. The relevant date in relation to the works to which Mr Dandy’s claim relates is therefore 28 May 2010. It is not suggested that Mr Dandy did not have an owner’s interest on the day his claim notice was served or that he was out of occupation by then.
361. A similar objection is raised to the claim by Mr and Mrs Rycroft who bought their home at 197 Sycamore Road in March 1999, and sold it on 28 October 2011. In my judgment they too are entitled to bring a claim in relation to the works completed by 28 May 2010, as their claim notice given on 26 October 2011 seeks to do.
362. Mr and Mrs Adams served their claim notice on 21 March 2013 in relation to alterations having a relevant date of 3 October 2011. Those alterations cannot have included work which was not completed until July 2012. Nor could a claim have been brought which included the incorporation of the footprint of C Shed into the West One Apron until the first claim day of 7 July 2013. As a matter of construction of the claim notice, therefore, I am satisfied that Mr and Mrs Adams claim is confined to the West One Apron as completed and first used on 28 May 2010. The same is true of the claims brought by Ms Bellamy and Mr and Mrs Brooks (to which, in any event, Mr Village made no objection).
363. I therefore determine issue 3 in the claimants’ favour.
Conclusion on Dandy references
364. The result of my determinations on the Dandy preliminary issues is that the claimants have succeeded in establishing that the references are viable, but in a limited form. Only such depreciation in the value of the claimants’ interests in their homes as can be shown to have been caused by the addition of the West One Apron (without the site of C Shed) is properly the subject of these claims for compensation. The relevant date is 28 May 2010 and any compensation found to be payable will be therefore be assessed by reference to values current on the first claim day, 29 May 2011.
365. This decision is final on the preliminary issues. The parties may now make submissions on the issue of costs in accordance with the timetable agreed between them.
Martin Rodger
Deputy President
15 October 2015