Dennis & Anor v Ministry of Defence

This case concerns the effect of noise from Harrier jet fighters on the 1^st Claimant’s neighbouring estate. It is alleged to constitute a nuisance at common law and/or to infringe his human rights, and also to infringe the human rights of his wife, the 2^nd Claimant. A declaration and damages are sought, alternatively damages of some £10,000, 000.

Walcot Hall Estate may be described as a traditional, residential, sporting and agricultural estate of some 1,387 acres. It is situated about 3 miles south east of the attractive market town of Stamford in Cambridgeshire and ten miles north west of Peterborough. It is west and slightly south of The Wash. The area generally is rural with scattered farms, some larger residences and villages. Walcot Hall itself is located in the north east of the Estate. Most of the land thus extends south from the Hall and has some frontage in the southwest on to the A1 road.

The Hall was built in 1678 of local limestone. On any view it is a very beautiful building and a fine example of a Carolean mansion, attributed to John Webb. It is now a Grade 1 listed building. There are various other buildings, cottages and structures forming part of the Estate, several of which are listed Grade 2.

The 1^st Claimant (“Mr Dennis”) is now 50 and has lived at Walcot Hall for most of his life. His father bought the Estate in 1963 and the family lived there until his death in 1977. Mr. Dennis and his mother remained until he married in 1981 and went to live with his wife in Huntingdon. However, he continued to be involved in the day-to-day running of the Estate. In 1984 Mr Dennis’ mother moved out to Mill House, a property on the Estate, and Mr and Mrs Dennis moved into Walcot Hall, where they have lived since with their three children. Also in 1984 the Estate was transferred to Mr Dennis.

I need not go into the honourable history of RAF Wittering in detail. It is, perhaps, the oldest established operational station of the RAF. The aerodrome was first built for the Royal Flying Corps in 1916 and was operational during the First World War. Its name was changed to Wittering in 1918 just after the RAF came into being. It was chosen by Major Harris RFC, later to become Marshal of the Royal Air Force Sir Arthur T. Harris. Wittering was then:

“Just a series of farm fields and I had my doubts whether with its contours it would be really suitable as a flight station for a flight of night anti-Zeppelin fighters of No. 38 Home Defence Squadron which I was forming at Castle Bromwich.”

as he was later to recall.

RAF Wittering has developed over the years. It has played its part in two World Wars, not to mention wars in the Falklands and the Gulf. It has housed a variety of aircraft including fighters, helicopters and bombers. Today it is “The Home of the Harrier”. The first Harriers, in the form of No. 1 (Fighter) Squadron arrived in August 1969. The Harrier is capable of vertical takeoff and is essentially a state of the art jet fighter. RAF Wittering has developed further with the advent of the Harriers. It is now a purpose built operating and training base for the Harrier. The facilities include runways, vertical landing pads and operating strips together with engineering and maintenance infrastructure. The full range of these facilities is necessary for training pilots, not only in the particular handling of the Harrier in flight, but its ability to takeoff vertically or from short strips.

The 1990’s saw a gradual reduction in RAF manpower and a reduction of its presence in Germany. In 1992 consideration was given to relocating the Harriers to RAF Bentwaters/Woodbridge, but later that year the Ministry of Defence (MOD) announced that a detailed investment appraisal had revealed that the move would not be cost effective. In 1999 Harriers which had been in Germany were brought back and based at nearby Cottesmore. The present position is that the operational squadron hitherto based at RAF Wittering has moved to RAF Cottesmore. This has reduced the flying from RAF Wittering by 12½ - 30% (the evidence is not clear). However, all RAF Harriers are now at Cottesmore and Wittering which is convenient and cost effective. No other twin bases are available, so that any further move from Wittering would lead to a split in the Harrier force. RAF Cottesmore thus maintains Harrier fighter squadrons to deploy in a United Kingdom emergency, in support of NATO and other overseas tasks and RAF Wittering trains the pilots without whom there could be no operational Harrier squadrons.

I believe the above background facts to be non-contentious. For the avoidance of doubt, I find them as facts on all the evidence deployed before me. I also find that the reduction in flying since the operational squadron moved to RAF Cottesmore, has no material effect on this case. It is the training of pilots and the necessary circuit flying which creates the worst noise.

Mr Elvin QC, for the Defendant, the MOD, sensibly conceded that the Harrier is a noisy aircraft. Indeed no one convincingly suggested that there was a noisier one, particularly considering the decibels generated when it comes in for a slow landing. However, Mr Elvin submitted it was important not to exaggerate the level of noise which was relevant to the MOD’s defence and, should the question arise, damages or compensation. I shall therefore summarise the evidence and reach some conclusions.

First, it is necessary to say something of the operations and layout at RAF Wittering. The main runway is east to west. Walcot Hall and its Estate is situated about 2 miles along the mid-line of the runway extended to the east. The prevailing wind is west to east and, in the main, the Harriers takeoff into the wind and thus away from Walcot Hall. But they come in to land from the east which brings them over the Estate and almost over Walcot Hall itself.

The noisiest exercise from Walcot Hall’s point of view, is when pilots are flying their training circuits, in particular, the so called “emergency circuit” and come in to make a slow landing which involves the use of the Harrier’s nozzles in order to increase the uplift effect. The training circuits typically takeoff to the west, turn south and then east and fly the downwind leg parallel to the runway, turn north and then west and back towards the east end of the runway to land. There are two circuits. The only difference geographically is that the emergency circuit makes the turn to land less tightly than the other. It simulates some problem or other and thus the turn is wider or outside the normal circuit and it is the emergency circuit that flies virtually over Walcot Hall. The nozzles are turned down to about 60 degrees by the time the Harrier comes out of its final turn before landing.

I heard evidence from Wing Commander Richardson and Air Commodore Leakey. I was satisfied by their evidence that it would not be reasonably practicable to alter the layout of the runway or training circuits to take the Harriers further away from Walcot Hall, without simply putting the noise problem on someone else’s doorstep. Also, the prevailing wind is westerly, which itself largely dictates that the aircraft takeoff and land along the east-west access. Training on the emergency circuit I also accept as necessary. Pilots need to be trained to cope with the various problems they may encounter in operations for obvious reasons.

Various measurements of the noise levels at Walcot Hall have been taken, both by the two experts who gave evidence and in earlier surveys, in particular, the AIRO survey back in 1988 which the MOD paid for. The experts, Mr Stigwood for the Claimants and Mr Weston for the MOD, met and produced a joint statement shortly before the trial, which contained a good measure of agreement. The MOD operates voluntary schemes whereby it will make grants for double-glazing or offer to purchase properties sufficiently affected by aircraft noise, according to the level of interference. The experts agreed that where grants are provided, it indicates an acceptance by the MOD that airfield operations are particularly disruptive to the residents; they agreed that the AIRO report concluded that the levels at Walcot Hall exceeded the level which triggered a grant under the MOD’s scheme. I interpose here that as it turned out, largely due to its listed status, double-glazing of Walcot Hall was not practicable. In any event it would not have affected the noise outside. The experts also agreed with the AIRO conclusion that:

“Those noise levels are sufficiently high as to cause disturbance to the occupants and material interference with normal domestic and business activities at Walcot Hall and the nearby properties.”

The disagreement between the experts was as to the extent of the disturbance; they agreed that disturbance and annoyance arises. Mr Stigwood described it as “highly intrusive” and referred to “extremely high peaks of noise.” Mr Weston thought that overstated the situation. He agreed there were extremely high peaks but considered there were few of them.

The AIRO report also contained these comments:

“It is quite clear from the observations taken that Walcot Hall and the nearby properties are subjected to very high noise levels owing to military aircraft activities associated with the operation of RAF Wittering. . . . . . . The particular noise in question is not only loud but is also characterised by a very rapid onset with a corresponding startle effect.”

I will also quote some introductory passages from this report which conveniently explained the technical terms used:

“The auditory magnitude of a noise is commonly expressed in terms of the A Weighted Sound Pressure Level in Decibels, expressed as dB(A). A Weighting reflects the ear’s frequency response to sound and therefore provides values which have some relation to subjective reaction. All reported values in the present study are in terms of dB(A).

The maximum noise level (LA max) is self explanatory, being the highest noise level in dB(A) obtained during a given event.

The equivalent continuous sound level (LAeq) is as its name implies the level of a notional steady sound which, at a given position and over a defined period of time, would have the same A Weighted acoustic energy as the actual fluctuating noise. LAeq can be determined over various periods and the relevant period should be stated.”

The report also refers to the single event noise exposure level (SEL). This is reasonably self-explanatory and, as the report states, may be considered as individual building blocks which can be used in the construction of a calculated value of LAeq for the overall noise climate over a given period of time. The report also accurately comments that the MOD criteria for its scheme are that LAeq (12 hour) exposure of 70 dB(A) or more, establishes eligibility for compensation by way of sound insulation measures or grant; LAeq (12 hour) exposure of 83 dB(A) or more would be considered intolerable, warranting on offer of purchase of the property by the MOD. Since the date of the report the MOD has adopted a 16-hour period for measuring LAeq for these purposes.

The report sets out in table form summaries of weekday aircraft noise events at Walcot Hall as measured during the period of the survey, namely, 27^th June – 8^th August 1988. Table 1 shows the following: the number of events per day varies considerably; ignoring one day on which there were no events the range is from 12 to 138; the overall average seems to be a little in excess of 70; the SEL measurements range from 97.8 to 103.2 and the LAeq from 63.5 to 78.6; the weekday average of LAeq (12 hour) was determined to be 73.2 dB(A). A separate table set out the LA max in dB(A) for the various events recorded and gave a range for each day which typically was from the upper 70’s to well over 100. The maximum was 77.1 to 113.1 and the lowest maximum was 77.5 to 101.5. Mr Stigwood’s evidence was that LA (max) was most relevant when considering aircraft noise and I accept that.

Griffiths J, as he then was, observed in Dunton v. Dover District Council [1977] QB 87 that references to decibels are not helpful unless compared with everyday sounds to which we can all relate. Helpfully, the AIRO report gives the dB(A) level of such events, as does Mr Stigwood’s report. For example, a heavy lorry at 3 metres is 90 dB(A); the kerbside of a busy street is 80 dB(A); a high speed train at 2 metres is 105 – 110 dB(A). It also indicates that interference to normal use of a telephone would occur at 50 – 55 dB(A). Mr Stigwood agreed with those measurements and in his report added numerous others, including, a car door slamming and engine starting (7.5m) 65 dB(A), a vacuum cleaner at 3 metres 70 dB(A), a pneumatic drill at 5 metres 100 dB(A). Those examples, I believe, give a sufficient touchstone. Mr Stigwood said in evidence that normal speech is around 50 to 60 decibels and that background noise should be 15 decibels less in order not to interfere. Mr Weston did not necessarily agree with that and felt that conversation could conveniently take place against background noise in excess of 35 decibels but I accept Mr Stigwood’ estimate since it was broadly in accord with similar comments in the material placed before me. The experts took their own measurements during their visits. These did not record maximum levels as high as the AIRO report but were still very high. Their records cover a relatively short period.

Mr Stuart-Barker, Claimants and Mr Condy, MOD, were called as experts to give evidence concerning the opportunity to exploit Walcot Hall for commercial entertaining and various other activities which could generate income. I shall have to return to their evidence in due course, but for present purposes, it is sufficient to note that they were agreed that the aircraft noise effectively destroyed the chance of exploiting Walcot Hall for such purposes. In his witness statement Mr Condy relates that on his visit to Walcot Hall there was a slight easterly wind and he understood from Mr Dennis that the Harriers were taking off towards Walcot Hall rather than overflying when landing. His experience was that even in those circumstances the noise made conversation outside impossible. In cross-examination he described the noise as very disruptive.

The valuation experts Mr Caroe of Knight Frank on behalf of the Claimants and Mr Paton of Humberts on behalf of the MOD, both agreed that Walcot Hall is blighted by the aircraft noise to a sufficient extent to reduce its market value substantially. The only difference between them was the extent of such reduction, to which I will return. Mr Caroe referred to the noise as exceptionally intrusive with a startle effect. Mr Paton summarised the noise as intrusive, particularly when it is at its peak outside in the gardens. He did not experience a startle effect because he was aware of the approach of aircraft for about a minute before the greatest impact of noise was experienced.

Mr Dennis described the noise as deafening when the Harriers are in the course of circuit training, particularly as they approach the runway over or near Walcot Hall at low altitude in order to land. He also referred to the unpredictability of the noise and stated that there could be a quiet day, presumably when there was little or no flying due to unsuitable weather, a day interrupted “tolerably” or an “unbearable” one. It was the landing noise that was the worst and which he described as “completely invasive”. He said it stopped conversation and thought. Mr Dennis spends about two thirds of his time in the office managing the Estate. He described being continuously interrupted, some times to the extent that he would leave the office for two or three hours hoping that the flying might have stopped on his return. He said no social occasions can be planned with any confidence midweek and he has seen children running from the garden with their hands over their heads as aircraft fly past. Mrs Dennis described disturbance to the children in particular. She said the noise would occasionally hurt their ears when they were young and that they often complained that it still does; visiting children who had not experienced the noise before were sometimes reduced to tears of fright and experienced pain in their ears when the planes flew by. She said that events on weekdays in the garden had always been difficult to plan and on heavy flying days had been entirely spoiled. She finds the noise on occasions unbearable and very stressful, to such an extent that she has taken her car and driven away. She also described the impossibility of holding a conversation, talking on the telephone or working comfortably in the garden when flying was in progress.

Eileen Richardson has worked for the Dennis family as personal assistant for some sixteen years. She is at Walcot Hall Monday to Friday between 9.00 a.m. and 5.00 p.m., sometimes later. She was brought up in Lincolnshire and is now 63 years old. She is well aware of the importance of the RAF and has lived near to other RAF bases. She works in an office at Walcot Hall. In her witness statement she describes the noise levels as extreme at times and shattering an otherwise peaceful environment. She says it is impossible to conduct a normal working day without constant breaks and that it is impossible to carry on a telephone conversation. She says that at the end of the day she frequently goes home with a headache or migraine and is extremely weary. Mrs Richardson does not ascribe the headaches entirely to the aircraft noise, she is unfortunately a sufferer from migraines, but says that they are a lot more frequent when working at Walcot Hall. Mrs Richardson also confirms that the worst and unbearable noise is when the Harriers come to land. In her witness statement she sets out extracts from her diary. These are not intended to be comprehensive and are no more than examples of noise which she has experienced at Walcot Hall. By way of illustration they contain the following references:

“Dogs cower when out with CD (Catherine Dennis): Harriers extremely noisy all day; Harriers very noisy – difficult to work. 3.35 p.m. Harrier over – extremely low – very frightening; Harriers extremely noisy p.m. very bad; Harriers very active today – all day; Harriers absolutely terrible – real problems; very noisy again; Harriers really bad today – pointless trying to use telephone; Harriers excessive!; p.m. Harriers absolutely terrible – just one after the other.”

I did not gain the impression that the witnesses I heard were exaggerating the level of noise interference. Indeed, comparing the decibel levels recorded by the experts and in the AIRO survey with the decibel levels given by way of example in that survey and by Mr Stigwood for every day familiar events, I find the various descriptions to be fairly accurate. I can well understand the reported comments from visitors to the Estate such as “How can you stand it?” It is helpful when seeking to compare the noise with the everyday examples given, to bear in mind the agreed expert evidence that a 10 dB(A) increase equates to a doubling of loudness.

Both experts considered the World Health Organisation (WHO) guidelines and various other material. In particular, Mr Stigwood pointed to the recommendation that LA max should not exceed 110 dB(A) in order to protect the public from hearing damage. He pointed out that flying events at Walcot Hall approach that boundary and on occasions have been found to exceed it. He expressed concern for hearing damage at present levels. Even if I were to accept Mr Weston’s view that the WHO view that average daily levels should not exceed 55 dB(A) is somewhat idealistic, the average daily levels at Walcot Hall are at least twice as loud. I find that Mr Stigwood’s reference to the noise being “highly intrusive” and with “extremely high peaks” to be fully justified.

Mr Breckman is a film location manager. He has experienced the noise at Walcot Hall and from a lay point of view I find his description as good as any I heard; he described the noise as “particularly fearsome.” Subject to the various matters of law raised and with which I shall have to deal, I find that the level of noise experienced at Walcot Hall is a very serious interference with the ordinary enjoyment of the property whether judged from inside or outside the house. It is a level of noise the effect of which is aggravated by its persistence and to an extent unpredictability. It is an interference with the enjoyment of that property that (subject to the matters discussed hereafter) no one should be called upon to endure in any location. In the main, flying takes place on weekdays, subject to weather. Night flying is restricted to 10 or 11 p.m. In plain language that is a great deal of flying.

Past complaints about the noise have a general relevance to the case in that they add credibility to the Claimants’ present protestations. They have a particular relevance to a defence the MOD added by amendment at trial, namely, that it has acquired the right to commit any nuisance by prescription, since the Harriers have been flying since 1969.

The relevant chronology may be summarised as follows:

1678

Walcot Hall built;

1916

RAF Wittering constructed;

1916-1969 RAF Wittering operates with various aircraft including Valiants, Victors and Vulcans (jet bombers)

1963

Walcot Hall Estate purchased by Mr Dennis’ father;

1969

Harriers operational at RAF Wittering;

1984

Walcot Hall Estate transferred to Mr Dennis;

1986

First complaint by Mr Dennis;

1996

Proceedings commenced.

After his return to Walcot Hall in 1984 Mr Dennis became concerned at the level of noise interference. In 1985 he was in contact with a Mr Govey, a Southorpe Parish Councillor, who was co-ordinating complaints from residents in his Parish concerning frequent excessive noise from low flying aircraft. Mr Dennis’ first written complaint was his letter dated 2^nd May 1986. He expressed serious concern about the effects of low flying in the area on his children and property; after expressing his appreciation of all that the RAF needed to do in training pilots and pointing out that he had never before complained in 25 years he wrote the following:

“Several nights recently, the low and constant flying woke up the whole household and had the children crying. The aircraft were doing circuits and landings with 180 degree turns directly over the house, “opening up the throttle” on the outside of the turn prior to landing. The noise was so deafening that I could feel the juddering vibration in the house! On fine days we have the same: terrifying any children who happen to be outside, and some adults too. It is virtually impossible to talk and I’m concerned that the noise could affect the children’s eardrums. We also seriously believe that the vibrations could be causing damage to the roofs of this house and outbuildings.”

There was some delay as this letter was apparently passed on to the MOD, but a reply was eventually received from the secretariat dated 13^th November 1986. After expressing regret that Mr Dennis had suffered disturbance as a result of operations at Wittering the writer confirmed that Walcot Hall did lie very near to the line of the base leg turn where Harriers have to increase power; it indicated that surveys were planned of some 40 military airfields throughout the country most affected by aircraft noise and that RAF Wittering was on the list; he sought to give some reassurance concerning damage to Walcot Hall or Mr Dennis’ children’s hearing but gave no hint that any change in flying operations could be made.

Mr Dennis wrote another letter, complaining about three nights of “almost unbelievable excessive noise”, on 25^th March 1987. At this time Mr Dennis was investigating the question of damage to Walcot Hall. Happily, no physical damage has been sustained. There followed the AIRO report to which I have referred. Mr Dennis then wrote to Mr Major, the local MP as he then was. In his reply dated 4^th April 1989 Mr Major said:

“. . . . . . . . Ever since I became the Member for Huntingdon 10 years ago, I have done all I can to try to keep nuisance and annoyance from low flying, night flying and others activities, to a minimum. However, as you will appreciate this is a very difficult and complex problem because, of course, the airfield has been in existence for very many years now and is required as an operation base for the defence both of Great Britain and the Western world.”

There is a letter dated 31^st May 1989 on Mr Dennis’ considerable file of correspondence from George Younger, then Secretary of State, in reply to John Major. In it he makes plain that RAF Wittering is the main Harrier base in the country and plays a vital part in the nation’s defence, including training pilots to fly the Harrier and that its role must continue. He goes on to give assurance that all RAF stations are conscious of the effect of noise and are encouraged to take any measures that are operationally acceptable to minimise disturbance. A copy of the letter was forwarded to Mr Dennis.

Mr Dennis continued to complain up to the end of 1993. Mrs Dennis also complained and they were not alone. A volume of “complaints correspondence” was placed before me which evidences that several other villages, Parish Councils, and the like were also complaining. The MOD’s attitude has not changed; the flying activity is a necessary part of training pilots in the interests of national security and that nothing can reasonably be done to improve the situation. I should add that RAF Wittering appears always to have been both polite and apologetic, whilst maintaining that flying must go on. In a letter to Mr Dennis dated 30^th September 1992 it was stated:

“The Ministry of Defence has already looked at moving the Harrier operations to another base at a different location and after careful consideration decided that it was cost-prohibitive.”

The final letter to which I was referred dated 2^nd December 1993 from RAF Wittering to Mr Dennis deeply regretted that he had been given cause to complain yet again. It continued:

“Unfortunately the situation is that a new course of student pilots have commenced conversion training to the Harrier and are at that phase of their training that requires they remain within the circuits doing successive touchdowns and take-offs giving them the essential familiarisation training on the aircraft type. In the interests of flight security during this phase of their training they use the wider circuit.”

Apologies were added. As I have indicated, during this period it was accepted that Walcot Hall fell within the ambit of the MOD’s noise insulation scheme, but it proved an impracticable option.

It was against this background that Mr Dennis reluctantly decided to consider proceedings against the MOD and consulted his solicitors in 1994.

This case raises an important and problematic point of principle in the law of nuisance. Namely, whether and in what circumstances a sufficient public interest can amount to a defence to a claim in nuisance. In several cases the point has arisen in a less dramatic form than here. For example, the local cricket club case: Miller v. Jackson [1977] QB 966 and Kennaway v. Thompson [1981] QB 88 in which the Court of Appeal affirmed the principle in Shelfer v. City of London Electric Lighting Company [1894] 1 Ch. 287, namely, the fact that the wrong doer is in some sense a public benefactor has never been considered a sufficient reason to refuse an injunction. (See Lindley LJ. At 315/6). Clerk and Lindsell concludes that public interest is “not in itself a defence, but a factor in assessing reasonableness of user”. 18^th Edition paragraph 19.72. Fleming The Law of Torts 9^th Edition at 471 points out that some weight is accorded to the utility of the defendant’s conduct, but suggests that the argument “must not be pushed too far.” He cites Bohlen Studies 429:

“If the public be interested let the public as such bear the costs.”

He points out this can be achieved by holding the defendant liable and leaving him to include the cost in charges to the public, or by statutory authority with provision for compensation. The former suggestion, of course, would only apply to a service provider capable of raising charges.

Mr Elvin submitted that in none of the cases in which public interest has been considered, has it been of such importance as in this case. Doubtless anticipating reliance on the Kennaway and Shelfer decisions by the Claimants, he submitted that using land in support of defence of the realm is a common and ordinary use of the land to everyone’s advantage; the Claimants had not been singled out, but together with many others in the United Kingdom experienced the inevitable consequences of maintaining an operational air force. He further submitted that this was a case involving detriment to the enjoyment of land as opposed to physical damage and that, in particular in such cases, the court seeks to strike a just balance between conflicting interests; the court should not conclude that the noise here amounted to a nuisance, essentially for three reasons:

Mr Wood QC for the Claimants, submitted that private rights cannot be overridden by the interests of the State, save perhaps for grave national emergencies. Alternatively, if they can be, the public not the individual should pay. He accepted that regard should be had to the character of the neighbourhood but denied it included an operational RAF Wittering; the neighbourhood was essentially rural. In any event he likened the introduction of the Harriers in 1969 to the steam hammer envisaged in Polsue & Alfieri v. Rushmer [1906] Ch. D. 234 at 250 and [1907] AC 121 at 123. He also submitted that the neighbourhood principle should be contained lest it failed to protect the Claimants’ rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol, now given effect by the Human Rights Act 1998.

Mr Elvin, rightly in my view, did not challenge the assertion that aircraft noise from the various training activities carried on at RAF Wittering, including circuit flying, landing and take off, could constitute a noise nuisance. He also accepted that if, contrary to his submissions, it did so, it was a continuing nuisance and no limitation point arose.

In view of the findings I have made in respect of the nature and extent of the noise disturbance, it seems plain to me that the noise is, on the face of it, a nuisance. In a case of this type, I believe I should consider the factors Mr Elvin has raised, in seeking to strike a fair balance between the parties. However, I do not regard the Harriers as an ordinary use of land, within the legal meaning of that phrase. The noise is extreme and if military activities generally are to be so regarded, in the context of nuisance, then the argument could logically extend to detonating, by way of testing state of the art explosives, including nuclear devices. I regard such activities which generate extreme noise or other pollution as extraordinary uses of land, even in this day and age. They may well be justified by other considerations but not, in my view, as ordinary use. Nor do I think that a consideration of the character of the neighbourhood tips the balance against finding the Harriers a nuisance. The area remains essentially rural, with villages and individual residences. As Mr Wood submitted it would be odd if a potential tortfeasor could itself so alter the character of the neighbourhood over the years as to create a nuisance with impunity. However, that consideration apart, it is helpful to consider, at least in broad terms, how matters have evolved at Wittering and briefly to consider how the common law has regarded other developments such as railways, airports, large factories or plants and the like in this context.

I have already mentioned how RAF Wittering came into being. Doubtless it was then considered convenient and over the years that view has been confirmed. Air Commodore Leakey said in evidence that RAF Wittering has many operational advantages. He mentioned the relatively easy access to foreign parts via The Wash. The Wash itself provides a convenient and well established training ground for firing at targets and dropping bombs. He confirmed that everyone involved was conscious of noise consideration and I have already described the MOD’s scheme for grants and purchase of property.

Mr Wood submitted that there was no evidence that the MOD had considered whether the Harriers should be flown near other people’s property at all, nor whether there was any other practicable location away from population. Mr Elvin only addressed these issues through Air Commodore Leakey’s evidence and by reference to certain consultation documents placed before me. Air Commodore Leakey could take the matter no further than I have mentioned. He said he was not involved in any decisions concerning moving the Harriers. He described the chain of decision making as: Plans Division and Headquarters Strike Command, responsible to the MOD. In particular it was commanded by an Air Chief Marshal responsible to the Chief of Air Staff in turn responsible to the Secretary of State.

The consultative documents, in my view certainly evidence an awareness of noise problems, but in the context of the grants scheme and more generally the overall cost effectiveness of various locations. Mr Wood is correct in submitting that I have no specific evidence of any consideration of moving the Harriers away from population entirely. A few extracts from the documents will illustrate the issues raised:

As to the common law’s approach to industrial development and the evolution of society generally, and at the risk of over simplification, the following observations may be relevant. The development of railways, canals, roads, large factories or plants and airports has largely proceeded pursuant to statutory authority or control. Planning controls were introduced in the 1940’s and public enquiries also became fashionable. Clearly such major developments in any society will interfere with the private enjoyment of nearby land. The private interests so affected have been dealt with in various ways, including: compulsory purchase, grant schemes and compensation. Statute can, of course, deal expressly with the right to bring actions, either preserving or prohibiting them. The common law has contributed by restricting the alleged tortfeasor to disturbances that are reasonably necessary in carrying out the undertaking that has been authorised. However, there is no statute in question here and the MOD is not subject to planning controls. The land was purchased originally in the usual way, so far as I am aware. All that has happened is that with the development of the jet engine and the vertical takeoff capability of, for example, the Harrier, the noise made by military aircraft has escalated. It is not surprising that no proceedings or, so far as I know complaints, arose in the early years since the aircraft then were not so noisy and the country was twice at war. However, with the introduction of the V-bombers and more particularly the Harriers, matters changed dramatically. I have already outlined the history of complaints that followed. To an extent a court can only take a neighbourhood as it finds it, but that cannot permit an undertaking in an area such as the one in question here to generate an ever increasing level of noise.

It is not one factor that determines whether a legal nuisance has arisen. The character of the locality and the particular use of the land in question are, of course, relevant. They are only signposts to a conclusion, more or less important depending on all the circumstances. The rule of “give and take, live and let live,” was identified as long ago as Bamford v. Turnley 3 B and S 62 at 83-84 by Bramwell B., as an appropriate guide to the interferences with the enjoyment of land that neighbours should accept. It was endorsed recently in Cambridge Water Co. v. Eastern Counties Leather plc [1994] 2 AC 264 and Southwark London Borough Council v.Tanner [2001] AC 1. Lord Millett in the Southwark case said

“The governing principle is good neighbourliness.”

He pointed out that reasonable use of land did not just mean reasonable from the user’s point of view, but must include consideration of a neighbour. Bramwell B. observed, in the passage to which I have referred, that:

“Acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to action . . . . .”

His reference to “conveniently done” clearly shows that otherwise ordinary acts may amount to a nuisance, for example if done to excess or even deliberately to annoy.

I return to the findings I have made. Even if I am wrong in regarding the flying of Harrier jets as an extraordinary user, still to fly them in such places or in such a manner that they exhibit their maximum and “fearsome” noise very close to or even over a neighbour’s house and when that may occur many times throughout a flying day and into the evening, in my view manifestly amounts to a nuisance unless otherwise justified. It seems to me that the nettle must be grasped. Either these Harriers constitute a nuisance or public interest, as represented by the MOD maintaining a state of the art air strike force and training pilots, provides immunity.

If there is immunity, it is obviously not unlimited. The MOD must do all it reasonably can to avoid damaging the interests of others. In my view that would include choosing an appropriate location and operating it reasonably.

Whilst I have no doubt there have been odd occasions when a pilot may unnecessarily have flown directly over Walcot Hall, I was satisfied by Wing Commander Richardson, that reasonable efforts were made to keep local annoyance to a minimum and not unnecessarily to fly over houses. It was not suggested that there was any gratuitous flying. Clearly the RAF is involved in the serious matter of training pilots to fly extremely expensive aircraft in combat, as safely as possible. I was satisfied that the training of pilots and circuit flying at and from RAF Wittering is conducted in as convenient a manner as is practicable, from the RAF’s point of view.

As to locations. There is force in Mr Wood’s submissions that the Harriers could or might be flown in areas away from housing, even rural housing. I was surprised that better evidence was not adduced on this issue by the MOD. For all I know there may be other locations from which Harriers would cause no disturbance, although I suspect they may be hard to find in our over populated island. However, I was satisfied that:

What is the effect of a public interest in an activity continuing, where that activity would otherwise constitute a nuisance? It seems to me that it would be unsatisfactory to attempt a general answer. It will depend on all the circumstances, not least the strength of the public interest in question. If public interest can be a relevant consideration, one solution would be that the particular public interest should be put in the scales at the stage when the court is seeking to balance the competing interests of the parties. As the cases indicate, very often the private interest will prevail. The alternative approach would be to exclude any public interest from consideration of whether a nuisance should be found and consider it as relevant only to remedy.

Where there is a real public interest in a particular use of land, I can see no objection in principle to taking that public interest into account, in one way or another, in deciding what is best to be done. Indeed, in effect that happens at present where use is authorised by statute. A recent example is Marcic v. Thames Water Utilities Ltd. [2002] EWCA Civ 64, [2002] QB 929. Manifestly a nuisance existed in Marcic. Plainly there is a public interest in the continuing operation of sewers and statute recognises that. The common law contribution is to ensure that the operator exercises reasonable care in pursuing its undertaking. The result is that, if due care is exercised, the nuisance continues. The public interest prevails, provided no more damage is done than is reasonably necessary. See also Allen v. Gulf Oil Refining Ltd. [1981] AC 1001. The difference in the instant case is that it is left to the common law to provide the answer, no statutory framework is present to assist. However, the public interest in question here, albeit very different, may be considered just as important, if not more so. It could also be thought that the MOD’s position, charged as it is with the defence of the realm, should be no less protected than commercial or other undertakings authorised directly by statute.

The problem with putting the public interest into the scales when deciding whether a nuisance exists, is simply that if the answer is no, not because the claimant is being over sensitive, but because his private rights must be subjugated to the public interest, it might well be unjust that he should suffer the damage for the benefit of all. If it is to be held that there is no nuisance, there can be no remedy at common law. As this case illustrates, the greater the public interest, the greater may be the interference. If public interest is considered at the remedy stage and since the court has a discretion, the nuisance may continue but the public, in one way or another, pays for its own benefit. The court in Marcic was not called upon to make that decision. It was applying the law to an undertaking being pursued with statutory authority and simply holding that the undertaking should be carried on with all due care. However, the comments in paragraphs 111 et seq suggest that it might have favoured the second option, or at least an option that gives effect to public interest but at the public expense, particularly if the common law is to develop consistently with European decisions involving human rights. Allowing a human rights claim but denying a remedy in nuisance would, of course, be another solution, but it would be one that reflected adversely on the flexibility of the common law. I fear neither Lord Loreburn nor Lord Halisbury would have approved of such an outcome: see Polsue at 123.

The principles or policy underlying these considerations are that public interest should be considered and that selected individuals should not bear the cost of the public benefit. I am in favour of giving effect to those principles. I believe it is necessary to do so if the common law in this area is to be consistent with the developing jurisprudence on human rights.

I therefore hold that a nuisance is established but that the public interest clearly demands that RAF Wittering should continue to train pilots. Mr Wood did raise the possibility of granting the declaration sought, but suspending it to give the MOD time to find an alternative site or, as I understood him, to provide evidence that none existed or none that could be conveniently utilised. I have already commented on the evidence before me and find it sufficient to reach the conclusion that I should not grant a declaration. In reaching that conclusion I have had in mind, in particular, the nature of the public interest, the defence of the realm, the enormous inconvenience and cost of uprooting RAF Wittering and RAF Cottesmore to another location and that, even assuming one might be found away from population, it would probably not be as convenient generally as Wittering/Cottesmore. On the other side, I have considered, particularly, the property rights of Mr Dennis; the fact that he has lived at Walcot Hall since childhood and hopes that one day one of his children will continue to maintain the Estate; and the very considerable noise interference with his enjoyment of it. I have also noted that diminution in the market value of the Estate may be compensated financially and that there has been considerable delay in bringing these proceedings.

I do not believe that the conclusion at which I have arrived is prohibited by authority. The facts of this case are extreme and not analogous to others to which I was referred. I am conscious that there is no authority directly in point which supports my solution. However, save where it may be considered more appropriate to leave the matter to legislation, the common law should develop in line with European decisions on human rights, which I consider later.

Mr Elvin raised, by way of amendment at trial, a plea that the MOD had acquired by prescription the right to fly the Harriers over Mr Dennis’ property. As Mr Wood, correctly in my view, submitted, that must mean the MOD had acquired the right to commit a nuisance.

Mr Elvin submitted that there was no objection in principle to a prescriptive right to commit a nuisance and Mr Wood did not dissent from that, so far as it goes. However, Counsel agreed that the alleged right would have to amount to an easement and that it would therefore need to be capable of forming the subject matter of a grant. Further, that the “user” must have been “as of right.”

In my judgment the plea fails on both grounds. As to certainty, Mr Wood asked rhetorically: could a conveyancer draft it? I cannot see how. Mr Elvin relied upon Mr Dennis’ evidence that the noise had not changed significantly since 1969. He had to accept significant day-to-day variations, but submitted that annually the overall position had clearly remained much the same. He pointed out that the training circuits were established and reasonably consistent.

However, Mr Elvin did not identify what level of decibels he would put in the imaginary grant nor how the flying circuit could be defined. An open-ended right to commit any noise nuisance might be capable of arising, but surely only by way of express grant. Mr Dennis’ evidence, whilst no doubt broadly correct from his point of view, would not assist a draftsman. No one had measured decibels over the necessary 20 years nor checked the precise flight paths that have been flown. Sometimes the Harriers seemed to “fly between the chimneys” as one witness mentioned. At other times they were generally overhead and at yet other times simply very close. One could not just take the maximum measurement recorded and use that because there is no evidence that that level has regularly been achieved for 20 years.

As to use “as of right”, Mr Wood relied upon the complaints and the MOD’s attitude that flying had to go on, as evidence that there had not been 20 years user without protest and that the MOD’s insistence on flying, was, in effect, using force and hence not “nec vi”. I also accept those submissions. I have described the history of complaints. It seems clear to me that Mr Dennis has neither consented, tacitly or otherwise, nor acquiesced in the nuisance. He has complained strongly, even to the point of involving his Member of Parliament. In face of the MOD’s fixed position that flying would continue, he was powerless to stop it. There was some delay in bringing this action but not enough, in all the circumstances, to affect this issue. In all, I find that the continued flying was not “as of right”. It was contentious and imposed on Mr Dennis who could do no more.

The claims here are on behalf of both Claimants (Mr and Mrs Dennis). It is alleged that the aircraft noise constitutes an interference with their human rights under the Human Rights Act 1998. The Articles relied upon are:

Mr Wood submitted that the noise from the Harriers and its admitted impact on the market value of the Estate, clearly constituted an interference with those rights of Mr and Mrs Dennis. He cited various cases in support including Powell v. The United Kingdom [1987] 9 EHRR 241; S v. France [1990] 65 D & R 250; Hatton v. The United Kingdom [2002] 34 EHRR 1 and Marcic (supra).

He accepted that the rights in question were not unqualified but that the MOD had failed to justify its interference, or at least had so failed in the absence of compensation. In particular, he submitted that the interference under Article 8 was not “in accordance with the law” nor “necessary in a democratic society in the interests of national security”; that the latter involved a consideration of proportionality and that would at least demand compensation. Further, he submitted that the MOD had not established that it had tried to find an alternative solution, for example by looking at other locations. He accepted that nothing could really be done at RAF Wittering to avoid the noise complained of, but maintained that no real consideration of where Harriers should be stationed had taken place, save on a cost driven basis; the MOD had simply decided that the local residents should accept the noise and its grants scheme which would suffice.

Mr Elvin accepted that Article 8 was engaged but submitted 8.2 was satisfied. He submitted that flying Harriers was lawful, it contravenes no statute or planning regulation; if it did constitute a common law nuisance then the Article 8 claim added nothing. Further, that training pilots was a legitimate aim and that in balancing the respective interests of the parties, clearly the public interest should prevail; he also referred to the history and facts of the matter including that Mr Dennis had no intention, even now, of selling Walcot Hall and that Mr and Mrs Dennis were not called upon to bear an individual burden, since many others in the locality also suffered.

As to Article 1, again Mr Elvin accepted it was engaged but that noise interference would not contravene it. He cited Powell in which the Commission observed that Article 1 was:

“Mainly concerned with the arbitrary confiscation of property and does not in principle, guarantee a right to the peaceful enjoyment of possessions in a pleasant environment.”

He repeated his submission on proportionality and finally submitted that, even if the noise amounted to a partial expropriation within Article 1, that concept should not apply here because Walcot Hall was blighted when Mr Dennis inherited it and that Harriers are to be replaced in about 2012 by FCBA and it was not certain that their pilots would be trained at Wittering or to what extent.

In Marcic (paragraph 106), the court cited the following passage from Powell and Raynor v. The United Kingdom [1990] 12 EHRR 355 at paragraph 41:

“Whether the present case be analysed in terms of a positive duty on the state to take reasonable and appropriate measures to secure the applicants’ rights under paragraph (1) of Article 8 or in terms of an “interference by a public authority” to be justified in accordance with paragraph (2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.”

The court upheld the Judge’s decision that the invasion of the claimant’s property by sewage amounted to an interference with both his Article 8 and Article 1 rights. It also referred to S v. France and suggested that:

“Where an authority carries on an undertaking in the interest of the community as a whole it may have to pay compensation to individuals whose rights are infringed by that undertaking in order to achieve a fair balance between the interests of the individual and the community.” (Paragraph 117).

In view of my findings on the extent of noise interference and the agreed fact that it significantly reduces the market value of the Estate, I am satisfied there is an interference both with Article 1 and Article 8 rights. As in Marcic, an appropriate assessment of damages at common law (I can be corrected if my assessment is inappropriate) will provide “just satisfaction” under section 8 of the Act so that the claims under Articles 8 and 1 become somewhat academic. However, I will give my views briefly. In S v. France the Commission held that although Article 1 did not guarantee the right to continue to enjoy possessions in a pleasant environment, nevertheless:

“Noise nuisance which is particularly severe in both intensity and frequency may seriously affect the value of real property or even render it unsaleable or unusable and thus amount to a partial expropriation.”

In that case it was not in dispute that the nuclear power station complained of was lawfully built and brought into service and the Commission had no doubt that it served the interests of the economic well-being of the country. In considering the phrase “necessary in a democratic society” the Commission observed:

“It must first be decided whether it was proportionate in relation to the legitimate interests the works were intended to serve. When a state is authorised to restrict rights or freedoms guaranteed by the Convention, the proportionality rule may well require it to ensure that these restrictions do not oblige the person concerned to bear an unreasonable burden.”

The application was ruled inadmissible because the French courts had already awarded damages.

In Hatton complaint was made that night flying to and from Heathrow violated the claimant’s Article 8 rights. With reference to justification under Article 8.2 the court said:

“In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.”

It went on to observe, as Mr Wood pointed out, that States are required to minimise, as far as possible, interference with rights by trying to find alternative solutions and generally seeking to achieve their aims in the least onerous way with respect to human rights. It pointed out that there should be “a proper and complete investigation and study” in order to find the best possible solution. That case succeeded on the facts. There had been a considerable increase in night noise since 1993 when the Government altered its restrictions on night noise without, as the court found, a proper investigation.

Following the implications of S v. France as identified in Marcic and, with respect, with which I agree, I would hold that a fair balance would not be struck in the absence of compensation. I would thus award damages under section 8 in respect of Articles 8 and 1. I would hold, as I believe is implicit in the decision in S v. France, that the public interest is greater than the individual private interests of Mr and Mrs Dennis but it is not proportionate to pursue or give effect to the public interest without compensation for Mr and Mrs Dennis. I do not accept Mr Elvin’s submissions to the effect that the Claimants are not called upon to bear an individual burden. The facts are that the MOD has operated its schemes for purchase of property or grants for double-glazing in the locality generally, but Walcot Hall could not be included. But in any event the local inhabitants constitute a very small proportion of the tax paying community at large. The same imbalance would apply even if one considered all RAF airfields. I have no evidence on this, but it must be the case. In my view, common fairness demands that where the interests of a minority, let alone an individual, are seriously interfered with because of an overriding public interest, the minority should be compensated. To its credit the MOD appears to accept that principle since it operates the voluntary schemes to which I have referred.