Nuances of nuisance addressed by the Court

In Jones v Ministry of Defence, the claimants’ aspirations of developing a holiday park on a plot of land near to an RAF airfield failed. As the “bucolic tranquillity” of the area had been interfered with for many years by the noise of military aircraft used for training purposes, which had become “part of the environment for generations”, the judge held that no nuisance was committed by the defendant, the Ministry of Defence.

At the heart of the judge’s finding were his comments that an interference with the use of land is always dependent upon the character of the locality in which the interference occurs. Consequently, the way in which the character of the locality is assessed becomes crucial for the purpose of ascertaining whether a nuisance was committed.

In this case, the historic loud noise produced by the defendant was a feature of the locality. Moreover, the claimants had materially changed the use of the land through introducing noise-sensitive activities. On the facts the judge dismissed the nuisance claim.

Background

In 2003 Mr and Mrs Jones bought Parc Cefni in the rural and largely agricultural area of Anglesey. Between 1958 and 2003, the land was used for supplying water to the people of Anglesey. The Joneses, however, dreamt of creating a holiday and leisure park on the land and obtained various planning permissions in 2004 and 2005 to construct holiday units. However, their development plans failed and since 2016 they have been trying to sell Parc Cefni. To the west of Parc Cefni lies Mona Airfield or RAF Mona, which is primarily used for training pilots on fast jets and as an emergency landing ground for the nearby RAF base. The two bases have been used in this way since the early 1950s and remain the only bases in the UK which are used for such training.

Mr Jones had complained to the operators of RAF Mona about aircraft noise, which prompted investigations and resulted in changes for pilots flying at the two bases where they had to avoid overflying Parc Cefni. However, the Joneses did not consider these measures sufficient and persisted with their complaints. Alleging that their property was deliberately targeted by the pilots, they took the matter directly to the Ministry of Defence and commenced legal proceedings.

The claimants’ main allegation was that their land was blighted by a significant change in flight patterns and by an increase in the use of RAF Mona. The claimants contended that the noise caused by the defendant’s activities had become intolerable and interfered with the reasonable enjoyment of Parc Cefni. They sought a declaration defining the area in which aircraft using RAF Mona could lawfully fly and/or damages. The claimants also alleged an infringement of their rights under Article 8 of the European Convention on Human Rights (ECHR) and/or Article 1 of the First Protocol to the ECHR.

Judgment

The judge held that the flying of military aircraft was an ordinary use of the defendant’s land. The judge considered the question of whether the noise emanating from the defendant’s activities was a nuisance becomes an issue of fact and judgment or of fact and degree. Following this approach, the judge considered it would be artificial and unrealistic to ignore a feature of the locality that had been present for many years. Given the 70 years’ use of RAF Mona as a training base, extremely loud aircraft noise was now an integral feature of the locality. Against this backdrop, the operation of RAF Mona was held to be an ordinary use of the defendant’s land and one of significant public interest.

The judge also considered that the defendant had taken all reasonable steps to minimise the noise. The routes of the circuits were chosen to avoid disturbing the people in a nearby village. Moreover, Mr Jones’s complaints prompted changes to the pilot’s routes, including the exceptional order to pilots to avoid flying over the most sensitive part of Parc Cefni, the nursery.

Importantly, the judge found that in any event, the Joneses had materially changed the use of Parc Cefni. The admittedly very loud noise of aircraft flying close to Parc Cefni did not create a material interference when the land was used for water supply as there was barely anyone there capable of being disturbed. The Joneses introduced noise-sensitive commercial activities onto the land, such that the noise did come to interfere with the current use and enjoyment of Parc Cefni. Ultimately the judge considered it was not fair for a new neighbour who starts using their land in a way that is sensitive to activities which an existing occupier has been reasonably undergoing for years, to complain that those pre-existing activities would disrupt the sensitive use which the new neighbour introduced.

After dismissing the nuisance claim, the judge also held that the aircraft noise did not breach the claimants’ rights under the ECHR. With regard to Article 8, while the aircraft noise did disturb the claimants’ lives and home, this interference was in accordance with the law (as it was not a nuisance) and necessary in the interests of national security. With regard to Article 1, the judge considered that the defendants’ activities did not deprive the claimants of their entitlement to the peaceful enjoyment of their possession.

Commentary

In summary, the nuisance claim failed because the aircraft noise had been present for so many years that it amounted to a feature of the locality, which could not be ignored when assessing, as a matter of fact and judgment, whether the operation of RAF Mona amounted to a nuisance. Therefore, the flying of military aircraft at RAF Mona was held to be an ordinary use of that land by the defendant (who had also taken all reasonable steps to minimise the disturbance to Parc Cefni).

It is interesting to note that the judge came to a different conclusion than that reached by Buckley J on the similar facts of Dennis v Ministry of Defence [2003] EWHC 793. Buckley J did find the noise to constitute a nuisance on the facts of that case (albeit that public interest considerations meant that the flying of aircraft for training purposes continue, such that an award of damages was more appropriate than a declaration). Importantly, in finding a nuisance, Buckley J held that the flying of military aircraft did not constitute an ordinary use of the land at RAF Wittering – but rather, the extreme noise of the aircraft was regarded as an “extraordinary” use of the land. Moreover, his analysis of the locality showed that it was an essentially rural area, and the judge rejected the idea that the very activities alleged to constitute a nuisance could have altered the character of the locality over the years.

The distinguishing factor between Dennis and the present case seems to be the judge’s interpretation of the principle of locality by reference to historic factual reality, such that the issue of whether there is a nuisance becomes one of fact and degree (as well as the judge’s alternative reasoning for his dismissal of the nuisance claim on the basis of the claimants’ material change of the use of the land). It will be interesting to see how the courts treat future nuisance claims in light of this case.

Full judgment available here.

This article was co-written by Mira Lungu.