Peires v Bickerton's Aerodromes Ltd, Court of Appeal - Civil Division, April 12, 2017, [2017] EWCA Civ 273

Issuing Organization:Civil Division
Actores:Peires v Bickerton's Aerodromes Ltd
Resolution Date:April 12, 2017
 
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Case No: A3/2016/1396

Neutral Citation Number: [2017] EWCA Civ 273

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

MR JUSTICE PETER SMITH

HC-2014-000601

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/04/2017

Before:

SIR TERENCE ETHERTON, MR

LORD JUSTICE UNDERHILL

and

LADY JUSTICE KING

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Between:

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Tim Marland (instructed by Holland & Knight (UK) LLP) for the Appellant

Edward Denehan (instructed by DMH Stallard LLP) for the Respondent

Hearing dates: 5 & 6 April 2017

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JudgmentSir Terence Etherton MR:

  1. The principal issue of law on this appeal concerns the meaning and extent of the immunity conferred by sections 76(1) and 77(2) of the Civil Aviation Act 1982 (``the CAA 1982'') in respect of noise nuisance from aircraft.

  2. The appeal is from orders of Mr Justice Peter Smith dated 17 March 2016 and 25 April 2016 restraining the Appellant, Bickerton's Aerodromes Limited, from carrying on, or causing or permitting to be carried on, certain manoeuvres by helicopters on or above part of its land lying near to the property of the Respondent, Lorna Peires (``Mrs Peires'').

    The background

  3. Mrs Peires is the freehold owner of land in Denham in Buckinghamshire (``the Property''). It comprises a substantial detached dwelling, with 4 bedrooms and 6 living rooms, set in substantial grounds with adjoining staff accommodation.

  4. The Appellant is the freehold owner of Denham Aerodrome in Denham (``the Aerodrome''). There has been an aerodrome at the site since around 1907. The Aerodrome is an operational aerodrome. It was first licensed in 1938. It currently has the benefit of a licence from the Civil Aviation Authority (``the CAA'') dated 24 June 1988.

  5. There is a field between the Property and the Aerodrome. Mrs Peires complains of the noise generated by exercises carried out by helicopters on the part of the Aerodrome which slopes towards the hedge boundary of that field (``the Slope''). So far as relevant to this appeal, the exercises comprise landing, taking off, hovering, turning the helicopter through 180 degrees and landing again. The manoeuvres take place on the Slope because part of the mandatory training requirements for a helicopter pilot is landing and taking off from sloping ground. There is a distance of 58 metres between the Property and the Aerodrome boundary closest to the Property, beyond which the training activity takes place.

    The proceedings

  6. Mrs Peires commenced these proceedings in the High Court. She claims that the Appellant has wrongfully caused or permitted excessive noise to come from the Aerodrome, causing her and her tenants nuisance and annoyance, by reason of which she has suffered damage. She claims an injunction to restrain the Appellant from continuing the nuisance and damages.

  7. In its defence the Appellant asserts, among many other things, that helicopter training, including landing and taking off from slopes near the Property, has taken place for the past 20 years and possibly the last 53 years. The Appellant denies that it has caused or permitted excessive or unreasonable noise to come from the Aerodrome or has done so wrongfully. It denies that any nuisance has been caused to Mrs Peires or her tenants or that she has suffered damage. The Appellant has asserted, ``as a preliminary point'', that any claim is barred by section 76(1) or section 77(2) of the CAA 1982 or both of those provisions. In addition to reliance on all those matters, the Appellant alleges that, if the Aerodrome operations would otherwise constitute an actionable nuisance, an easement to cause that noise nuisance has been created by prescription.

    The statutory and regulatory framework

  8. Section 76(1) of the CAA 1982 provides as follows:

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

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

  9. Section 77 of the CAA 1982 provides as follows:

    ``Nuisance caused by aircraft on aerodromes.

    (1) An Air Navigation Order may provide for regulating the conditions under which noise and vibration may be caused by aircraft on aerodromes and may provide that subsection (2) below shall apply to any aerodrome as respects which provision as to noise and vibration caused by aircraft is so made.

    (2) No action shall lie in respect of nuisance by reason only of the noise and vibration caused by aircraft on an aerodrome to which this subsection applies by virtue of an Air Navigation Order, as long as the provisions of any such Order are duly complied with.''

  10. Section 105(1) of the CAA 1982 defines ``flight'' as:

    ``a journey by air beginning when the aircraft in question takes off and ending when it lands''.

  11. There is a slightly different definition in Article 3 of the Air Navigation Order 2016 SI 2016/765 (``the 2016 Order'') (replacing equivalent provisions in the Air Navigation Order 2009 SI 2009/3015 (``the 2009 Order'')).

    ``3. Meaning of ``in flight''

    (1) An aircraft is deemed to be in flight--

    (a) in the case of a piloted flying machine, from the moment when, after the embarkation of its crew for the purpose of taking off, it first moves under its own power, until the moment when it next comes to rest after landing;

    ...

    And the expressions ``a flight'' and ``to fly'' are to be construed accordingly.''

  12. It is not in dispute that a helicopter is an ``aircraft'' within those provisions: see Part 1 of schedule 4 to the 2016 Order (replacing equivalent provisions in the 2009 Order).

  13. Article 218 of the 2016 Order (replacing equivalent provisions in the 2009 Order) provides that the Secretary of State may prescribe conditions under which noise and vibration may be caused by aircraft on licensed aerodromes.

  14. Article 11 of the Air Navigation (General Regulations) 2006 SI 2006/601 (``the General Regulations'') (made pursuant to Article 131 of the Air Navigation Order 2005 SI 2005/1970, which was in identical terms to what is now Article 218 of the 2016 Order) contains the relevant prescribed conditions. It provides that noise and vibration are authorised when the aircraft is taking off or landing and in certain other circumstances which are not relevant to this appeal.

  15. Article 274 of the 2016 Order provides (subject to an immaterial qualification) that anything done under, or by virtue of, any article or regulation revoked by the 2016 Order, if it could have been done under or for the purpose of the corresponding provision of the 2016 Order, is to be deemed to have been done under or by virtue of the corresponding provision of the 2016 Order and anything begun under, or by virtue of, any such article or regulation may be continued under the 2016 Order as if it had begun under the 2016 Order.

  16. Airspace users and aircraft must also comply with the Standardised European Rules of the Air (``SERA'') in the Annex to Commission Implementing Regulation (EU) No. 923/2012 of 26 September 2012. SERA 2005 provides that the operation of an aircraft either in flight, on the movement area of an aerodrome or at an operating site shall be in compliance with the general rules, the applicable local provisions and, in addition, when in flight, either with the visual flight rules or the instrument flight rules. SERA 3015 specifies that, except when necessary for take-off or landing, or except...

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