Denham - Court decision
At a certain military jet training base (Vampires) students and instructors were surprised to receive orders that all were required to work over the weekend, and that all training would be circuits. Came to light that the rural land, in which the base was situated, would be subject to an on site sales campaign for residential development. The OC wanted to get the point across, buyer beware.
I would have thought that actually reading the judgment might be a good idea before complaining about it. Yes, the judge did know about the prison sentence (it's clearly mentioned in the judgment). No, they are not getting the money - the judge granted an injunction. And what is also very clear is that the defendants tried to deceive the court about the frequency and duration of the noises, but were found out. Not at all surprising that they lost.
Chief Bottle Washer
I heard from a reliable source that the owners of Denham airfield won their case in the Court of Appeal yesterday and that a written judgement will be published in due course.
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Well at least one airfield in the m25 region might survive then. We can all pile in when Fairoaks, Redhill and Dunsfold all turn into houses.
Chief Bottle Washer
31. The Judge then turned to the statutory defences.
32. He rejected the defence based on section 76(1) of the CAA 1982 for reasons which he stated very shortly (at para. [94]) as follows:
“I do not accept that the training exercise on the slope is “flight” or any part of it. The section is plainly designed to cover journeys with aircraft passing over other property and the associated take off and landing.”
33. The Judge then turned to the defence based on section 77(2) of the CAA 1982. He referred to, and quoted, the former regulations, the current versions of which are quoted above, conferring exemptions from the low flying prohibitions. He said (at para. [100]) that he did not accept that the exemptions applied to the operations on the Slope because he did not accept that those operations involved flying. He said that the helicopters “at best are hovering for a defined period”, and that
“they are not by the operation on the slope carrying out any operation involving take off [because they] do not need to do the exercise to take off…It follows that the procedures are not part of any normal incident of flying or taking off.”
32. He rejected the defence based on section 76(1) of the CAA 1982 for reasons which he stated very shortly (at para. [94]) as follows:
“I do not accept that the training exercise on the slope is “flight” or any part of it. The section is plainly designed to cover journeys with aircraft passing over other property and the associated take off and landing.”
33. The Judge then turned to the defence based on section 77(2) of the CAA 1982. He referred to, and quoted, the former regulations, the current versions of which are quoted above, conferring exemptions from the low flying prohibitions. He said (at para. [100]) that he did not accept that the exemptions applied to the operations on the Slope because he did not accept that those operations involved flying. He said that the helicopters “at best are hovering for a defined period”, and that
“they are not by the operation on the slope carrying out any operation involving take off [because they] do not need to do the exercise to take off…It follows that the procedures are not part of any normal incident of flying or taking off.”
45. My reasons for allowing the appeal on the first ground of appeal are as follows.
46. The Judge gave two reasons for rejecting the application of section 76(1) of the CAA 1982. The first was that the exercise in which the helicopters were engaged on the Slope did not involve “flight” or the ordinary incidents of “flight”. The second was that section 76(1) only applies to flight and the ordinary incidents of flight which are reasonable. I do not agree with either qualification.
47. The Judge said that “flight”, for the purposes of section 76(1), is confined to “journeys with aircraft passing over other property and the associated take off and landing”. He therefore confined “flight” in this context to lateral travel from one fixed point to another. He gave no justification or explanation for that limitation. I can see no justifiable basis for it. The statutory definition in section 105(1) of the CAA 1982 contains no such limitation unless it is to be found in the word “journey”. The word “journey”, however, has no such usual limitation.
53. If the Judge’s definition was correct, it would not cover a captive balloon or kite. Yet, the CAA’s published exceptions to the SERA minimum height requirements specifically authorise a captive balloon or kite “to be flown at heights below the minimum height requirements specified in SERA 5005 and SERA 5015” and describe a captive kite as “a kite that, when in flight, is attached by a restraining device to the surface”.
Conclusion
67. Those are my reasons for allowing this appeal and dismissing the cross appeal.
Lord Justice Underhill:
68. I agree.
Lady Justice King:
69. I also agree.
46. The Judge gave two reasons for rejecting the application of section 76(1) of the CAA 1982. The first was that the exercise in which the helicopters were engaged on the Slope did not involve “flight” or the ordinary incidents of “flight”. The second was that section 76(1) only applies to flight and the ordinary incidents of flight which are reasonable. I do not agree with either qualification.
47. The Judge said that “flight”, for the purposes of section 76(1), is confined to “journeys with aircraft passing over other property and the associated take off and landing”. He therefore confined “flight” in this context to lateral travel from one fixed point to another. He gave no justification or explanation for that limitation. I can see no justifiable basis for it. The statutory definition in section 105(1) of the CAA 1982 contains no such limitation unless it is to be found in the word “journey”. The word “journey”, however, has no such usual limitation.
53. If the Judge’s definition was correct, it would not cover a captive balloon or kite. Yet, the CAA’s published exceptions to the SERA minimum height requirements specifically authorise a captive balloon or kite “to be flown at heights below the minimum height requirements specified in SERA 5005 and SERA 5015” and describe a captive kite as “a kite that, when in flight, is attached by a restraining device to the surface”.
Conclusion
67. Those are my reasons for allowing this appeal and dismissing the cross appeal.
Lord Justice Underhill:
68. I agree.
Lady Justice King:
69. I also agree.
Couple who won court battle after 'shattering' helicopter noise caused Tess Daly to pull out of buying £4m home have ruling overturned by Court of Appeal
A couple who said "shattering" helicopter noise ended their hopes of selling their £4m home to "Strictly" presenter, Tess Daly, will just have to live with the racket after a court ruling.
Norman Peires and his wife Lorna said the nightmare din of chopper blades coming from Bickerton's Aerodrome, near their Denham home, blighted their happiness and slashed the value of their luxury home.
A judge agreed with them last year when he ordered the aerodrome's operators to cut the noise or pay the couple almost £600,000 in damages.
The couple attempted to sell the mansion to Strictly Come Dancing presenter Tess and her husband Vernon Kay, but the move fell through when they stepped out into the garden, the court heard at the time.
After visiting the six-bedroom property, called Shepherd’s Holt, Mr Justice Peter Smith said: “I found the noise excruciating in the garden and clearly noticeable to a significant degree within the rooms.
"It was simply impossible to have any kind of conversation or do any kind of activity in the gardens when the helicopters were there".
He added that there was "compelling" evidence that the helicopter noise amounted to a legal "nuisance" that had to be stopped.
Mr Justice Smith was also told that another potential buyer, Gabby Logan, did not even make it past the front gate because of the noise.
He issued an injunction against Bickerton's Aerodromes Limited, restricting it to only two 15-minute weekly training sessions close to the boundary.
Now, however, the judge's ruling has been reversed by the Court of Appeal in a decision which leaves Mr and Mrs Peires powerless to stop the noise.
The Master of the Rolls, Sir Terence Etherton, ruled that the Civil Aviation Act 1982 made the helicopter flights immune from legal action.
The couple complained about the aerodrome’s use of a slope just a hedgerow away from their home for pilot training.
But Sir Terence said such exercises were a "mandatory part of the training skills to obtain a helicopter pilot's licence."
Landing and taking off manoeuvres on the slope were "conducted in accordance with normal aviation practice", he added.
He today pointed out that the Civil Aviation Act rules out trespass and nuisance claims relating to aircraft flights.
Subject to height and distance limits, the immunity applies to noise and vibration caused by aircraft on an aerodrome.
Flights did not have to be carried out "reasonably" for the immunity to apply, added the judge, who was sitting with Lord Justice Underhill and Lady Justice King.
The aerodrome's appeal was allowed and the orders granted in favour of Mr and Mrs Peires were overturned.
Norman Peires and his wife Lorna said the nightmare din of chopper blades coming from Bickerton's Aerodrome, near their Denham home, blighted their happiness and slashed the value of their luxury home.
A judge agreed with them last year when he ordered the aerodrome's operators to cut the noise or pay the couple almost £600,000 in damages.
The couple attempted to sell the mansion to Strictly Come Dancing presenter Tess and her husband Vernon Kay, but the move fell through when they stepped out into the garden, the court heard at the time.
After visiting the six-bedroom property, called Shepherd’s Holt, Mr Justice Peter Smith said: “I found the noise excruciating in the garden and clearly noticeable to a significant degree within the rooms.
"It was simply impossible to have any kind of conversation or do any kind of activity in the gardens when the helicopters were there".
He added that there was "compelling" evidence that the helicopter noise amounted to a legal "nuisance" that had to be stopped.
Mr Justice Smith was also told that another potential buyer, Gabby Logan, did not even make it past the front gate because of the noise.
He issued an injunction against Bickerton's Aerodromes Limited, restricting it to only two 15-minute weekly training sessions close to the boundary.
Now, however, the judge's ruling has been reversed by the Court of Appeal in a decision which leaves Mr and Mrs Peires powerless to stop the noise.
The Master of the Rolls, Sir Terence Etherton, ruled that the Civil Aviation Act 1982 made the helicopter flights immune from legal action.
The couple complained about the aerodrome’s use of a slope just a hedgerow away from their home for pilot training.
But Sir Terence said such exercises were a "mandatory part of the training skills to obtain a helicopter pilot's licence."
Landing and taking off manoeuvres on the slope were "conducted in accordance with normal aviation practice", he added.
He today pointed out that the Civil Aviation Act rules out trespass and nuisance claims relating to aircraft flights.
Subject to height and distance limits, the immunity applies to noise and vibration caused by aircraft on an aerodrome.
Flights did not have to be carried out "reasonably" for the immunity to apply, added the judge, who was sitting with Lord Justice Underhill and Lady Justice King.
The aerodrome's appeal was allowed and the orders granted in favour of Mr and Mrs Peires were overturned.
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The full Judgement can be found here:
Peires v Bickerton's Aerodromes Ltd [2017] EWCA Civ 273 (12 April 2017)
And some background about the original trial Judge:
Joshua Rozenberg: Look out for a retirement announcement from the High Court's Mr Justice Peter Smith - Legal Cheek
Peires v Bickerton's Aerodromes Ltd [2017] EWCA Civ 273 (12 April 2017)
And some background about the original trial Judge:
Joshua Rozenberg: Look out for a retirement announcement from the High Court's Mr Justice Peter Smith - Legal Cheek
