Public defence

When it came to a toss-up between the rights of the individual against the public interest a compromise had to be reached. Jeremy Hyam reports on a recent MoD nuisance case

Two weeks ago, as the last few RAF Tornados on their way home from the Gulf tipped their wings and performed victory rolls over the East Anglian countryside, the Ministry of Defence (MoD) was digesting the unwelcome news of Mr Justice Buckley’s £950,000 award for aircraft noise nuisance to the owners of Walcot Hall, a country house and 1,400 acre estate built in the time of Charles II. For all its venerable connections, the estate has the misfortune to lie on the training circuit for trainee Harrier jet pilots operating out of RAF Wittering in Cambridgeshire.
The case raised the question of whether, and in what circumstances, a sufficient public interest can amount to a defence to a claim in nuisance, and how the court should strike a fair balance between the significant public interest in the defence of the realm and the private individual’s quiet enjoyment of his land.
The claimants were the owners of Walcot Hall, “a fine example of a Carolean mansion, attributed to John Webb and Grade 1-listed”. The defendants operate RAF Wittering, known as “the home of the Harrier”. Walcot Hall lies on the landing approach to Wittering. As considerable evidence from the MoD demonstrated, it would not be practical to alter the layout of the runway or training circuits to take the Harriers further away from Walcot Hall, without simply putting the problem on someone else’s doorstep. Unfortunately for the MoD, the doorstep that it had chosen for its nuisance was, by reason of its beauty and size, of very high capital and amenity value. The blight was estimated by the claimants at £10m.
All parties agreed that Harriers are noisy aircraft, although there was some expert disagreement as to just how noisy that is, but the judge held that it was a “very serious interference with the ordinary enjoyment of the property, whether judged from inside or outside the house”. It was a noise that, subject to public interest defences, “no one should be forced to endure in any location”.
The MoD raised three significant arguments against the claim for a declaration/ injunction to prevent the noise and the claim for damages. First, it claimed that the use of the land in the defence of the realm was a common and ordinary use and that the use of the Harriers was reasonable. Second, it stated that because it was a case that involved the detriment to the enjoyment of land as opposed to physical damage, the court should seek to strike a fair balance between conflicting interests, and third, it argued that having regard to the public interest in defence of the realm and that RAF Wittering is an established feature of the local neighbourhood (an airfield had existed at Wittering since 1918, and Harriers had been present since 1969), no nuisance should be held to exist.
The claimants, by contrast, likened the introduction of the Harriers in 1969 to the steam hammer envisaged in Polsue & Alfieri v Rushmer, where it was held that if a substantial addition to noise is found in a particular case, it is no answer to say that “the neighbourhood is noisy and that the defendant’s machinery is of first class character”.
Unlike most areas of industrial and commercial development – railways, canals, roads, large factories or airports – there are no statutory or planning controls over the development and use of weapons of defence. It was thus up to the common law through the well-known line of cases – Miller v Jackson (cricket balls hit for six) Kennaway v Thompson (water-skiing on Mallam waters) and Shelfer v City of London Electric Lighting Company (noise and vibration from engines next to the Watermans Arms on Bankside) – to develop the law of nuisance to restrict a potential tortfeasor within reasonable bounds by means of injunction and/or damages. That approach is now informed by the Human Rights Act, in particular in respect of Article 8(1) and (2) and Article 1 of the First Protocol.
The judge’s approach was that if he included the public interest on the primary question of whether nuisance existed at all, there was a likelihood of injustice because if he found that no nuisance existed, then selected individuals would suffer damage for the benefit of all, without compensation. However, if he left the relevance of the public interest to what discretionary remedy ought to be granted, the nuisance would continue but compensation would be paid for, one way or another, by the public. Rejecting the application for an injunction to stop the Harriers flying at Wittering, he held that while the public interest clearly demanded that RAF Wittering should continue to train pilots, it could do so only if the claimant was properly compensated.
This solution to the problem, and thus the flexible development of the common law of nuisance, was strongly influenced by the human rights jurisprudence, in particular S v France, in which the court held: “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 community”.
This approach led on to the difficult issues of quantification of damage. The claimant put forward a claim on the basis that the past six years’ losses should be assessed at the rental value which should be added to the blight or loss of capital value – a total claim of £10m.
The judge rejected this approach and considered the issues separately – the loss of capital value; the past and future loss of amenity; and the past and future loss of use.
As far as the capital value is concerned, although the experts had agreed that the property was blighted by the aircraft noise, their respective diminution of capital valuations were £7m apart and their annual letting values were £215,000 per year apart. This evidence had to be seen in the context that the owners had no intention of either selling or letting the property, thus the judge held that in the circumstances there was a relatively small risk of capital value loss eventuating and assessed such loss at £300,000. He awarded six years of past loss of use and the immediate payment of the future loss of use and an award of £50,000 for loss of amenity. The appropriate overall award for what he regarded as an exceptional case was £950,000.
Precisely how this figure was arrived at is something of a mystery if one simply reads the judgment. It is possible to infer that past and future loss of use accounted for £600,000 – the use of Harriers at Wittering is expected to cease in 2012 – and £50,000 was the award for loss of amenity. There was no separate award for human rights damages, the common law damages award being just satisfaction.
Despite the judge’s protestations that the facts of the case were exceptional and that its circumstances were unlikely to recur, this decision shows how the common law of nuisance is developing in line with human rights jurisprudence to ensure that the public interest defence to nuisance can rarely be run without giving a right to compensation to the person affected. In human rights terms, it would be a disproportionate interference with the affected individuals rights to allow nuisance to continue without compensation. With the announcement of planned new runways and terminals at Heathrow, Gatwick and Stansted, the right to compensation for nuisance caused by aircraft noise is sure to be fertile ground for compensation claims based on similar human rights arguments.
Jeremy Hyam is a barrister specialising in environmental law at 1 Crown Office Row