Dennis & Anor v Ministry of Defence

Extreme military aircraft noise may constitute a nuisance even where the activity serves a vital public interest. Public interest is relevant to the balance between private rights and the community’s needs, but it does not automatically prevent a nuisance arising. The operator must take reasonable steps to minimise avoidable harm. Where the public interest requires the activity to continue, the court may withhold declaratory or injunctive relief while awarding damages so that the affected individual does not bear the cost of the public benefit. Severe and persistent noise may also interfere with rights under Articles 8 and 1 of the First Protocol to the Convention. Compensation may be necessary to achieve a fair balance.

The claimants owned Walcot Hall, situated near RAF Wittering. They alleged that repeated Harrier training flights caused exceptionally intrusive noise, amounting to a common-law nuisance and interference with their Convention rights. The Ministry of Defence accepted that the aircraft were noisy and that the training activity was operationally necessary, but maintained that the public interest in national defence should defeat the claim or prevent relief.

The issues included whether the noise was a nuisance, whether the Ministry had acquired a prescriptive right to commit it, whether Articles 8 and 1 of the First Protocol were engaged, and what remedy and damages were appropriate.

1. Nuisance. The noise was a very serious interference with the ordinary enjoyment of the estate. Locality and the use of the land are relevant, but they are signposts rather than decisive rules. The governing idea is reasonable use and good neighbourliness, expressed through the principle of give and take.
2. The flying of Harrier jets in a manner producing extreme noise close to residential property was not an ordinary use of land in the legal sense. Even if it were treated as ordinary, flying repeatedly over or close to a neighbour’s house at maximum noise would amount to a nuisance unless otherwise justified.
3. Public interest and remedy. The public interest in training pilots for national defence was exceptionally strong. It did not prevent a nuisance from arising. The Ministry had nevertheless shown that the training was conducted as conveniently as practicable, that unnecessary flying over houses was avoided, and that relocation would be highly inconvenient and costly and might merely transfer the nuisance. The nuisance was therefore established, but a declaration was refused because the public interest required RAF Wittering to continue operating. Damages were the appropriate means of ensuring that the claimants did not bear the public cost alone.
4. Prescription. A prescriptive right to commit a nuisance would have to be an easement capable of grant and sufficiently certain to define. The alleged right was incapable of satisfactory definition by noise level or flight path. In any event, the claimants’ repeated complaints meant that the use was not “as of right”.
5. Human rights. The severity of the noise and its effect on market value amounted to interference with Article 8 and Article 1 rights. Applying the fair-balance and proportionality principles reflected in Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 64 and S v France [1990] 65 D & R 250, compensation was necessary. The common-law damages provided just satisfaction, so the Human Rights Act claims added nothing to the award.
6. Damages. Loss of amenity, loss of use and the risk of capital loss were considered together rather than simply aggregated. Damages of £950,000 were awarded. The possible future introduction of a materially noisier aircraft at Wittering could found a new cause of action.