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[2021] EWHC 2276 (QB)
Case No: G90MA IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION MANCHESTER DISTRICT REGISTRY
Before HHJ Sephton QC, sitting as a Judge of the High Court
Between :
(1) Arthur Jones (2) Rhian Jones
Claimants
- and – Ministry of Defence Defendant
Mr David Hart QC and Mr Alasdair Henderson instructed by Richard Buxton, Solicitors, for the Claimants
Mr David Elvin QC and Mr Admas Habteslasie instructed by the Government Legal Service for the Defendant
Judgment
Introduction
- On the south shore of a reservoir that lies in the centre of Anglesey is the property owned by Mr and Mrs Jones, now known as Parc Cefni. Mr and Mrs Jones intended to develop the land to create a holiday and leisure park. About a mile to the west of Parc Cefni, just beyond the village of Bodffordd, lies Mona Airfield. Since about 1951, Mona Airfield has been used by the Royal Air Force as a relief landing ground for the nearby base at RAF Valley and as a runway where trainee pilots undertake circuit drills using fast jets and turbo prop aircraft.
- In this case, Mr and Mrs Jones claim that an increase in the noise created by the operations in and around RAF Mona since 2007 has blighted their land. They contend that the noise constitutes an actionable nuisance; further or alternatively, they claim that their rights pursuant to Article 8 and pursuant to Article 1 of the First Protocol to the European Convention on Human Rights have been infringed. They seek a declaration defining where it is lawful for aircraft using RAF Mona to fly and/or damages.
The law
- The essence of the allegation of nuisance in the present case is that the defendant’s activities have caused an interference with the claimants’ reasonable enjoyment of their land.
- In Lawrence v Fen Tigers Limited [2014] UKSC 13, [4] Lord Neuberger PSC reminded us that
“In Sturges v Bridgman (1879) 11 Ch D 852 , 865, Thesiger LJ, giving the judgment of the Court of Appeal, observed that whether something is a nuisance “is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances”, and “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. Accordingly, whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity concerned is carried out.”
- In Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 , 299, Lord Goff of Chieveley observed that liability for nuisance is “kept under control by the principle of reasonable user—the principle of give and take as between neighbouring occupiers of land, under which ‘those 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 an action’.”
- In Fearn v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104, at [40], Sir Terence Etherton MR identified the issues to be addressed if the defendant is to persuade a court that an activity which materially interferes with the claimant’s use of his land is nevertheless no
- I have difficulty with the proposition that the court is required to take into account some noise, but leave out of account that noise which amounts to a nuisance; it seems to me that this begs the very question posed, namely, whether the activity in question amounts to a nuisance. Lord Neuberger suggested (at [72]) that in some cases, the court should go through an iterative process when considering what noise levels are acceptable when assessing the character of the locality and assessing what constitutes a nuisance. Lord Carnwath JSC appeared to take a different and to my mind, more easily understood view. Having reviewed the authorities, he said (at [190]): “In none of these cases did the court find it necessary to undertake an “iterative process” as proposed by Lord Neuberger PSC: para 72. The judges proceeded on the basis that a change in the intensity or character of an existing activity may result in a nuisance, no less than the introduction of a new activity. It was a matter for the judge, as an issue of fact and degree, to establish the limits of the acceptable, and if appropriate to make an order by reference to the limits so defined.”
- The importance of locality in a noise nuisance claim is demonstrated by two decisions of Buckley J: Gillingham BC v Medway (Chatham) Dock Co Limited [1993] QB 343 and Dennis v Ministry of Defence [2003] EWHC 793.
- In Gillingham, a huge increase in lorry traffic travelling to a dock gave rise to constant, intrusive noise: “Most houses in Bridge Road have sound insulation, as do some in Medway Road. Despite it, I am quite satisfied that their evenings, their sleep and their general comfort were greatly disturbed. Some of them had abandoned front rooms and virtually none opened front windows. I should have said that these houses are all close to the road, perhaps a few paces from the pavement. There were various other complaints including vibration, dust and fumes. The residents described feeling tired through lack of an undisturbed night's sleep.” The recorded noise from lorries was at least 80dB and may well have exceeded 100dB – the technology then available did not permit more detailed measurement. Buckley J held that the current character of the neighbourhood was such that the noise did not constitute a nuisance.^1
(^1) Buckley J held that the character of the neighbourhood had been changed because planning permission had been granted, the effect of which was to alter the character of the neighbourhood. The judge’s reasoning about planning permission was overturned by a majority of the Justices in Lawrence. However, I note that Lord Neuberger took pains to state (at [99]) that he was not saying that the actual decision in Gillingham was incorrect. I take from this that the criticism of Buckley J’s decision was not that he was wrong to conclude that the character of the locality meant that highly intrusive noise did not constitute a nuisance, but rather that he agreed that the character of the locality could be changed by a stroke of the planner’s pen.
- In Dennis, the issue was aircraft noise from Harrier aircraft flying from RAF Wittering near to a country estate. Buckley J held “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.”
- Another important issue in the present case is the effect of a change of use of the land occupied by the claimant. In Lawrence, Lord Neuberger considered, obiter, this issue: “53. There is much more room for argument that a claimant who builds on, or changes the use of, her property, after the defendant has started the activity alleged to cause a nuisance by noise, or any other emission offensive to the senses, should not have the same rights to complain about that activity as she would have had if her building work or change of use had occurred before the defendant's activity had started. That raises a rather different point from the issue of coming to the nuisance, namely whether an alteration in the claimant's property after the activity in question has started can give rise to a claim in nuisance if the activity would not have been a nuisance had the alteration not occurred. …
- It is unnecessary to decide this point on this appeal, but it may well be that it could and should normally be resolved by treating any pre-existing activity on the defendant's land, which was originally not a nuisance to the claimant's land, as part of the character of the neighbourhood—at least if it was otherwise lawful. After all, until the claimant built on her land or changed its use, the activity in question will, ex hypothesi, not have been a nuisance. This is consistent with the notion that nuisance claims should be considered by reference to what Lord Goff referred to as the “give and take as between neighbouring occupiers of land” quoted in para 5 above (and some indirect support for such a view may be found in Sturges , at pp 865–866).
- On this basis, where a claimant builds on, or changes the use of, her land, I would suggest that it may well be wrong to hold that a defendant's pre-existing activity gives rise to a nuisance provided that (i) it can only be said to be a nuisance because it affects the senses of those on the claimant's land, (ii) it was not a nuisance before the building or change of use of the claimant's land, (iii) it is and has been, a reasonable and otherwise lawful use of the defendant's land, (iv) it is carried out in a reasonable way, and (v) it causes no greater nuisance than when the claimant first carried out the building or changed the use. (This is not intended to imply that in any case where one or more of these requirements is not satisfied, a claim in nuisance would be bound to succeed.)”
The development of Parc Cefni
- This case concerns land owned by Mr and Mrs Jones which they have called “Parc Cefni.” In this judgment, I shall use “Parc Cefni” as a convenient way to refer to the land now owned by the Joneses, even though it was not previously known by this name.
significantly in this case: there has been a children’s nursery on the site for most of the time since the Joneses bought Parc Cefni.
- When it became clear that their ambitions were not to be realised, the Joneses decided that they would sell Parc Cefni. They have been trying to sell the property since 2016. Mr and Mrs Jones allege that the reason that their dreams have turned into a nightmare is the intolerable noise from overflying aircraft using the nearby base at RAF Mona.
RAF Valley and RAF Mona
- It is convenient at this stage to describe RAF Mona and to explain what aircraft were using it and how. I make the following findings:
- Since the early nineteen fifties, student pilots have learned to fly fast jets at RAF Valley. RAF Valley is now the only base in the United Kingdom from which pilots are trained on fast jets. RAF Mona is an important adjunct to RAF Valley. It is primarily used for pilot training and as an emergency diversion airfield in case of emergency or poor weather.
- BAe Hawk T Mark 1 (“Hawk T1”) aircraft have been used at RAF Valley since 1976. They were gradually replaced by BAe Hawk T Mark 2 (“Hawk T2”) aircraft in a rolling programme that commenced in 2009 and was completed in the Spring of 2016. There are significant differences in the avionics of a Hawk T2 compared with a Hawk T1 and the Hawk T2 is heavier, more powerful and noisier, but the flying technique adopted for the two aircraft is, for all material purposes, identical. The Hawk T2 is used by the RAF to teach pilots the skills necessary to fly the RAF’s current multi-role aircraft, the Typhoon and the F35.
- In 2019, the defendant closed its base at Linton-on-Ouse and relocated the training of pilots on Texan T1 aircraft to RAF Valley and RAF Mona. The Texan T1 is a turbo-prop aircraft which is slower and less powerful than the Hawk.
- RAF Mona is used principally to train pilots on circuits: The pilots of Hawk aircraft are taught to take off (usually into the wind), accelerating to 190 knots until reaching 500 feet. They then perform a 60 ° banking turn to reach 1,000 feet and start the downwind leg. At the end of the downwind leg, the pilot makes a final call to the control tower and commences his final turn. The aircraft is manoeuvred into a 45 ° angle of bank and the aircraft turns and drops from 1,000 feet onto the runway with the aim of having wings level at 200 – 300 feet. Pilots are taught that the downwind spacing for a circuit should be judged visually with reference to the wing tip and the runway centreline. This method of judging when to turn has the advantages that it is transferable to any airfield (because the reference point is the runway itself, and not
any other ground feature) and it is transferable to the Typhoon and F35 aircraft which the trainee pilots will later fly. Circuits in a Texan T1 are performed in a similar fashion. Wing Commander Pote told me that the circuit is slightly narrower because the Texan is slower than a Hawk.
- There are some variations on this theme. The pilot will need to alter his approach depending upon the weather conditions, particularly the wind. Pilots may occasionally fly low level circuits, in which, having reached 500 feet, they climb no further. Pilots are occasionally required to undertake a “flapless” circuit; that is, a circuit in which the pilot is not permitted to use his flaps – presumably to simulate the loss of use of flaps during operation. Such a circuit requires wider turns to be made. About 5% of the circuits flown are “flapless” circuits. Squadron Leader Stuchfield told me that RAF Mona is also used for practised forced landings; in this drill, pilots start at between 2,500 and 3,000 feet; they circle the aerodrome and are required to land their aircraft.
- Circuit flying is a fundamental part of training pilots on fast jets. I take the following as an accurate description of the function of this type of training: “Circuit flying combines many of the essential flying skills required by pilots; the circuit is a formalised pattern that teaches a wide range of competencies, including those required to take-off, land and handle emergencies in flight and it is an excellent exercise for developing confidence, pilot ability and 'airmanship'. The circuit pattern is accepted universally as a precision exercise that is a most effective teaching method which allows the pilot to use spare mental capacity to do other tasks (e.g. look for other traffic, system management or essential checks). It also gives the instructor time to debrief the previous circuit and provide any coaching needed for the forthcoming pattern. This circuit pattern is the safest procedure to achieve the training aims, using the least power and making the least noise.”
- RAF Mona has a single runway which runs from south west to north east. Circuits are flown to the south of the runway in order to avoid overflying the village of Gwalchmai and to avoid interference from aircraft flying from RAF Valley. When the wind blows from the south west, as it does about 60% of the time, the runway is designated as runway 22. In these conditions, pilots take off and turn left. At the end of their downwind leg and into the finals turn, pilots fly in the vicinity of Parc Cefni. When the runway is used in the opposite direction, it is designated as Runway 04. In these conditions, pilots take off and turn right. During the upwind turn and the start of the downwind leg, pilots fly in the vicinity of Parc Cefni.
- The Hawk and the Texan T1 aircraft are very noisy aircraft. The noise from these aircraft were the subject of complaints that Mr Jones made from 2010 onwards.
- On 1 February 2012, Mr Jones renewed his allegation that his property was being specifically targeted. On 8 February, he repeated that he was being victimised and persecuted.
- Wing Commander Wharmby and Squadron Leader Norton visited Parc Cefni on 15 February
- In a letter dated 21 February, Group Captain Hill explained that the area that pilots were required to avoid was the Nursery and Activity Centre and not the other buildings on the site. He stated that aircraft should not overfly the other buildings on the property on a routine basis, but that “due to the nature of training flights coupled with weather constraints, aircraft may occasionally overfly these outlying properties.”
- On 19 March 2012, Group Captain Hill responded to another complaint by Mr Jones. In relation to a specific complaint, he stated that onboard equipment demonstrated that a Hawk had not overflown the nursery as alleged and that “false perception was a key component here”. More generally, he concluded that RAF Valley conducted a “well-considered approach to flying training and operational support whilst minimising disturbance to the local community”. He suggested that Mr Jones direct his complaints to the Ministry of Defence. Mr Jones complained again on 19 April 2012. On 26 April 2012 Group Captain Hill stated, “On 19 March 2012… I informed you that I remain convinced that the manner in which RAF Valley conducts operations reflects a well-considered approach to flying training and operational support whilst minimising disturbance to the local community. The internal investigation has been closed and my position has not changed. In view of your letter of complaint dated 19 April 2012, I believe we have now reached an impasse.” He repeated the advice to take the matter up with the Ministry of Defence.
- In the FOB issued in April 2012, the map is supplemented with additional text as follows:
“RLG Mona Local Sensitive Areas. Aircrew operating in the Mona circuit are to modify their circuit patterns to avoid overflight of the areas highlighted right. In particular, any overflight of the Activity Centre and Nursery at Parc Cefni, Bodffordd is to be avoided: a. Runway 04. No 4 FTS aircraft climbing upwind from runway 04 are to have crossed the B-road before initiating the upwind turn; resultant flight path is shown in green. Breaks to runway 04 should be initiated NLT halfway along the runway or no earlier than abeam the reservoir. b. Runway 22. No 4 FTS aircraft on downwind runway 22 should track no further north than the northern edge of the Cefni Reservoir causeway. The final turn should not be initiated before the ‘diagonal’ tip-in cue” I take the rubric relating to runway 22 to mean that as pilots approach from the southwest, they should plot their course in a north-easterly direction (and “no further north than the
edge of the… causeway”) until they reach the tip-in cue, when they should commence the final turn.
- Mr Jones continued to complain. Eventually on 19 June 2013, Mr Jones wrote to the Ministry of Defence. He alleged that aircraft had been flying closer to Parc Cefni, that the situation worsened in 2011 and that he felt he was being punished because he had complained. He threatened legal action and eventually commenced these proceedings.
- Subsequent issues of the FOB did not differ materially from that issued in 2012 until October
- The FOB issued on 10 October 2016 contained an identical map. However, the second sentence of the text now reads, “In particular, any over-flight of Parc Cefni, Bodffordd should be avoided”. The FOB does not explain where Parc Cefni is; Group Captain Moon’s evidence (which I accept) confirms my perception that any pilot reading the FOB would assume that the red circle marked on the plan is the area to avoid.
- I note that during oral evidence Mr and Mrs Jones both persisted in the allegation that pilots had deliberately targeted Parc Cefni and had wilfully breached the rule in the FOB.
Findings about overflights
- I turn to consider the allegation at the heart of the claimant’s case, that in 2007 there was a significant change in flight patterns and an increase in the use of RAF Mona for RAF training purposes.
- I deal first with the allegation that there was an increase in the use of RAF Mona. Mr Sebastian Richie provided me with a table compiled from official records that contained the number of sorties from RAF Mona in the period 2003 – 2011. Late in the trial, I was provided with a further table that provided the number of sorties from 2013 to date. The figures show a steady decrease from almost 40,000 sorties in 2003 to around 5,000 sorties in 2018. In 2019 and 2020, the figures increase to around 11,000 sorties. The principal reasons why the numbers decreased consistently for many years is that the RAF has drastically reduced its requirement for trainee pilots; further, pilots are now extensively trained using flight simulators rather than live flights. These factors substantially outweighed the factors relied upon by Mr Jones (namely, the inception of commercial flights from RAF Valley to Swansea and the training of foreign pilots). I regard these tables as highly reliable evidence. They demonstrate that the allegation that there was an increase in the use of RAF Mona is incorrect. I note that during his cross-examination, Mr Jones persisted in his assertion that the numbers had increased even when he knew that the RAF’s official figures demonstrated that
Squadron Leader Stuchfield told me that he concluded that some of the overflights of Parc Cefni were the result of pilots overflying at greater altitude when undertaking simulated forced landings; when he discovered this fact, he circulated the information that the Avoid was out of bounds even when undertaking this exercise.
- Squadron Leader Stuchfield told me that he had been stationed at RAF Valley in 1994-1995, 1999-2002 and from 2013 to date. During that time he had been involved as a trainee, as a qualified flying instructor and in his current role in flying circuits in Hawk jets at RAF Mona. He told me that the flightpaths had not changed during that period. He told me that the 1994 plan did not represent the circuits flown at any time during his service at RAF Valley. He explained that circuits do not follow an identical ground path: the circuit is based not upon ground features, but upon the geometry of the flight about the runway. Conditions, particularly the wind, will differ widely and cause the ground path to vary. Insisting that pilots take a wider path to and from the runway exposed pilots to unwarranted hazard. Wing Commander Pote gave similar evidence in connection with Texan T1 aircraft. He added that the lowest altitude for flight was 500 feet; pilots only go below that altitude when taking off and after making the finals turn. Squadron Leader Stuchfield and Wing Commander Pote accepted that pilots did occasionally overfly the Activity Centre and Nursery; they pointed out that landing a fast jet is an extremely exacting operation; these were trainees and they could not be expected to perform perfectly from the outset; if a pilot did overfly an area to be avoided, the qualified flying instructor would likely debrief the pilot to ensure that there would be no recurrence.
- I conclude that there was no significant change in the flight path in 2007. There was no single “flight path” because pilots do not follow a ground path, but have to move their aircraft in accordance with the geometry of the wing tip relative to the runway, and in doing this, varying conditions – particularly the wind – will affect the ground path actually followed. I find that flights generally avoid Parc Cefni, but a small number – probably less than 5% – overfly Parc Cefni. I reject the allegation that flights previously followed the path shown on the 1994 plan. I make these findings for the following reasons: (a) I accept the evidence of Squadron Leader Stuchfield, whom I found to be a reliable and forthright witness. In particular, I accept his logic that Hawks were flown at RAF Mona before and after 2007, and there is no reason why the flightpaths would have changed. I also accept the evidence of Group Captain Moon and Wing Commander Pote. The fact
that the defence (before it was amended) does not correspond with their evidence does not persuade me that their evidence should be rejected.
(b) Although I accept generally that the witnesses who gave evidence for the claimants were doing their best to help the court, I bear in mind that when they were asked to make witness statements in the Spring of 2020, the events in question had occurred 13 or more years previously. I am not convinced that their evidence is reliable.
(c) I am not convinced by Mr Jones’s evidence. It was a feature of his evidence that he minimised the effects of noise prior to 2007. He told me that the noise at Parc Cefni before 2007 was not of significant consequence. He claimed that the noise audible from Bodffordd was “a humming noise, not a noise you could take offence at.” In the light of evidence from Mr Humphreys and from Ms Large (the claimants’ noise expert) about the very significant noise perceived in Bodffordd, I regard Mr Jones’s description as wholly implausible. This was another reason why I treat his evidence with caution.
(d) So far as the video recordings are concerned, I find it extremely difficult to judge precisely what they show. I accept the evidence of Squadron Leader Stuchfield that judging the path and altitude of the aircraft from these recordings is difficult. I agree with his point that such a judgment is made more difficult because it is not always possible to tell from where the recordings were made and because of the inconsistent use of the zoom feature on Mr Jones’s camera. I accept, however, that the recordings show that some of the aircraft fly over Parc Cefni and all of them fly quite close to the property. I found nothing in the video evidence that is inconsistent with the findings I have made.
- I reject the allegation made by Mr and Mrs Jones in correspondence and in evidence that pilots deliberately overflew Parc Cefni in order to intimidate them. I accept the evidence of Air Vice Marshal Hedley, Group Captain Moon, Wing Commander Pote, Wing Commander Wharmby and Squadron Leader Stuchfield that deliberate breach of a flying order would be investigated and visited with dire consequences. No such thing has happened. I accept the evidence that training flights are closely monitored by qualified flying instructors who would step in if there were any breach of the flying orders and debrief the pilot concerned. That Mr and Mrs Jones persisted in this implausible allegation gives me further cause to question the reliability of their evidence.
The noise at Parc Cefni
- I now consider the noise at Parc Cefni.
even those conducted indoors, had to be interrupted when aircraft flew over. The volume of the television had to be increased. Mr Humphreys explained: “Working inside the building did sometimes reduce the noise but if the jets flew straight over, the noise was sudden and like thunder. At those times I found it impossible to hear or communicate clearly with clients and phone conversations were impossible without shouting.” In oral evidence. Mrs Jones described the noise of a Texan aircraft: It is, she said, “A whirling noise. The sound feels as if it is coming down towards you. It is an ongoing noise that lingers. The jet is louder but the other is lingering.” Some of the witnesses commented that the noise of the Hawk T2 was louder than that of the Hawk T1, but provided no detailed description of the effect of the additional noise. I heard no convincing evidence that the noise disturbed sleep.
- In his witness statement, Mr Jones suggests that his blood pressure has increased as a result of exposure to noise. He also suggests that the noise from the aircraft has impaired his hearing. There is no medical evidence to support these assertions. I am not convinced by this evidence that the noise has affected Mr Jones’s physical health.
- I conclude that the noise of aircraft flying close to, and occasionally over, Parc Cefni was and is very loud. It disrupts conversations and can frighten small children. It is necessary to increase the volume on the television if an aircraft passes by. A Hawk aircraft may startle the unwary owing to the sudden onset of very loud noise in an otherwise quiet environment. The Texan does not startle in the same way, but the noise lasts longer. The noise occurs on weekdays between 8am and 2am, but is intermittent and not regular.
- As to the history of the noise, I have found that there was no increase in the number of flights and no material variation in flight paths in 2007. Between 2003 and 2010, the noise at Parc Cefni came principally from Hawk T1 jets. The number of noise incidents decreased steadily as the number of sorties from RAF Mona declined. From 2011 until 2018, the number of sorties continued to decline, but the noise each aircraft made was louder than previously because of the introduction of the Hawk T2. I have not heard convincing evidence that the noise of the Hawk T2 had any significant effect upon life at Parc Cefni and I find that, owing to the decrease in the number of sorties, the overall impact of the noise was no greater than before. In 2019, the number of sorties increased as Texan T1 aircraft began to use RAF Mona. However, I reject Mr Jones’s evidence that the noise is significantly greater since the introduction of Texan T1 aircraft. The conclusion that the addition of Texan aircraft has not added to the overall noise burden is supported by a table at paragraph 6.10 of Ms Large’s
report dated 25 June 2020, which gives a comparison between the noise she measured in 2016 and that she measured in 2019: the figures for 2019 (after the Texan was introduced) are generally lower than those for 2016 (before the Texan was introduced).
- At present, the number of sorties is still significantly less than it was in 2003 (or 2007, for that matter), although the quality of sound is different because it comes either from the Hawk T (which is noisier than the T1) or from the Texan (which is less noisy but of longer duration). I find that taking into account the very significant decline in the number of sorties since 2003, and despite the introduction of the Hawk T2 and the Texan T1 aircraft, the overall interference with the use and enjoyment of the claimants’ land has not materially increased.
- It is plain that the noise of aircraft flying near to and over Parc Cefni is annoying and disruptive. It is very annoying to Mr and Mrs Jones in and around their home. It is likely that some holidaymakers and some tenants of commercial property have been and will be put off Parc Cefni because of the noise of passing military aircraft using RAF Mona. I have no doubt that the noise interferes with the current use and enjoyment of the land.
Is there a nuisance?
- Parc Cefni lies almost at the geographical centre of Anglesey. The area is largely agricultural. Cefni reservoir lies to the north of Parc Cefni. The village of Bodffordd is nearby: it was described in evidence as “sleepy” – it has no convenience store and the local school was threatened with closure. However, the bucolic tranquillity of this part of Anglesey has been disturbed for many years by the sound of fast jets making circuits around, landing at and taking off from Mona airfield. Fast jets have been using RAF Mona since 1951 and Hawk aircraft have been using the airfield since 1976. The noise has been part of the environment for generations. Mr Mark Humphreys explained to me in evidence that he had lived in Bodffordd since his infancy, and the noise from the aircraft was, and still is, very loud indeed. In what struck me as a telling expression, he said that the noise “was part of everyday life” when he was growing up.
- In my judgment, it is appropriate to characterise the locality around Bodffordd (and including Parc Cefni) as being largely agricultural, but one in which very loud noise from aircraft using RAF Mona is heard on frequent occasions. I reject the submission made in the claimants’ written closing that I should not take into account the noise generated by the very activities alleged to constitute nuisance. The approach I take is consistent with the “presumption of reality” referred to at paragraph [57] of Lord Neuberger’s judgment in Lawrence. I am required to form a judgment whether the noise created by the defendant’s activities
it their business to remind trainee pilots of the flying order when it came to their notice that it may have been breached. (d) I accept the evidence of Squadron Leader Stuchfield and Wing Commander Pote that the area to be avoided on Parc Cefni cannot be made larger without giving rise to unacceptable risks to the safety of pilots, their aircraft and people on the ground. (e) I reject the allegation that pilots have deliberately flouted the order not to fly over the Nursery and Activity Centre. (f) My attention was not drawn to any other steps that the defendant could reasonably take to mitigate the noise heard at Parc Cefni.
- I conclude that the claimant has not established that the defendant has committed a nuisance. Of course, that is not to say that the defendant may significantly increase the noise pollution in the locality by making substantial increases in the number of flights or by introducing aircraft that are significantly more noisy than the Hawk T2 and the Texan T1. As Lord Carnwath pointed out in Lawrence, “a change in the intensity or character of an existing activity may result in a nuisance.” For the avoidance of doubt, for the reasons stated earlier in this judgment, I do not consider that the introduction of the Hawk T2 or of the Texan T aircraft constituted a change in the intensity or character of the existing use of RAF Mona sufficient to amount to a nuisance.
- I believe that it is significant that I have rejected the allegations that there was a change in flight patterns and an increase in the use of RAF Mona. I think that the fact that the claimants have pleaded and sought to prove that matters got worse in 2007 bespeaks a realistic recognition that there was no nuisance when they acquired the land in 2003 and that, absent any deterioration in the situation, there is no claim in nuisance.
- If I am wrong about this, I need to consider the point that the Joneses have changed the use to which Parc Cefni was put.
- Before the Joneses bought Parc Cefni, the land was used for purposes ancillary to the supply of water to the people of Anglesey. In my judgment, the flying of fast jets over this land, even in the much greater numbers that prevailed before 2003, did not create a material interference with the use to which the land was then put: There was scarcely ever anyone on the land capable of being bothered by the noise. I suspect, though I make no finding about this, that the sum paid by Mr and Mrs Jones when they bought Parc Cefni in 2003 reflected
the fact the land was undeveloped and lay close to the flight path of aircraft using RAF Mona. In my view, the activities undertaken by the defendant did not then constitute a nuisance.
- Mr and Mrs Jones introduced to Parc Cefni activities that were sensitive to the noise created by the aircraft at RAF Mona. I reject the submission that there has not been a material change of use of the land. Such a submission fails to stand up to scrutiny in the face of a comparison between what activity was conducted on the land in, say 2002, and that in, say 2008.
- Adopting the approach of Lord Neuberger at paragraphs [53] – [56] in Lawrence, I should treat the defendant’s pre-existing activities as part of the character of the locality. On my findings, the defendant’s activities: (a) can only be said to be a nuisance because they affect the senses of those on the claimants’ land, (b) were not a nuisance before the change of use of the claimant's land, (c) were and are a reasonable and otherwise lawful use of the defendant's land, (d) are carried out in a reasonable way, and (e) cause no greater nuisance than when the claimant first carried out the building or changed the use. On the basis of the approach suggested by Lord Neuberger, the claim fails.
- I do not think that such a result is unjust. If an occupier of land has conducted an activity in a reasonable manner for many years, I do not consider it fair that a new neighbour who wishes to start doing something that is sensitive to the occupier’s activity can complain that the activity in question will disrupt the sensitive use of his land that the neighbour wishes to introduce.
Human Rights Act 1998
- The claimants allege that the aircraft noise amounts to a past and continuing breach of the rights of the claimants under Article 8 and/or Article 1 of the First Protocol to the European Convention on Human Rights. I received only summary submissions on this issue.
- Article 8 provides as follows:
“Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
