Brunt & Ors v Southampton International Airport Ltd.

For the purposes of section 9(6)(b) of the Land Compensation Act 1973, a greater number of aircraft refers to increased aerodrome throughput capacity over a relevant period, assessed by reference to the aerodrome as a whole. It does not mean merely that works enable more types of aircraft to use the aerodrome. Purpose ordinarily means the objectively anticipated consequence of the operator’s intention, rather than its purely subjective commercial aim. Apron works intended to accommodate more large passenger aircraft fail the statutory filter where overall aircraft throughput is expected to fall. A harsh outcome does not itself justify departing from the natural construction or establish a Convention breach.

The appellants owned houses near Southampton Airport and claimed compensation for depreciation allegedly caused by increased aircraft noise following substantial taxiway and apron works carried out between 1993 and 1995.

The Lands Tribunal, in decision LCA2252001 dated 11 December 2003, dismissed the claims. It held that section 9(6)(b) required a numerical comparison of the aircraft for whom facilities existed before and after the works, assessed by reference to the airport as a whole.

The appeal concerned whether the statutory phrase covered an increase in aircraft types or passenger aircraft, despite a projected fall in total aircraft movements, and whether purpose was a subjective or objective inquiry.

By a majority, the appeal was dismissed. Neuberger and Tuckey LJJ upheld the Lands Tribunal’s construction. Ward LJ dissented and would have allowed the appeal.

1. Section 9(6)(b) of the Land Compensation Act 1973 requires a greater number of aircraft to be assessed by reference to the aerodrome’s throughput capacity: the number of individual aircraft that can be accommodated over a relevant period. The assessment is made across the aerodrome as a whole. An increase in aircraft types, without increased throughput, is insufficient.
2. The word purpose ordinarily has a relatively objective meaning. It refers to the objectively anticipated consequence of the relevant operator’s subjective intention. Subjective intention may assist in assessing that consequence, but entitlement cannot depend solely on the operator’s commercial wishes or unrealistic projections. This approach was consistent with the reasoning in R (Plymouth City Airport) v Secretary of State for Transport, Environment and the Regions [2001] EWCA Civ 144.
3. The works were intended to accommodate substantially more large commercial passenger aircraft, but the increase was accompanied by a greater reduction in smaller-aircraft movements. The overall throughput was therefore not greater. The works did not satisfy section 9(6)(b), so the compensation claims failed.
4. The statutory scheme distinguishes between intensification without physical alteration, qualifying runway alterations and qualifying apron alterations. The scheme may operate as a blunt filter and produce harsh individual outcomes, but those outcomes were not anomalies sufficient to displace the natural statutory meaning. The court also relied on the principle confirmed in Powell & Rayner v UK (1990) 12 EHRR 355 that intensification without physical alteration does not itself give rise to compensation.
5. The Convention argument failed. Article 1 of the First Protocol was accepted not to require compensation in these circumstances. Any Article 14 argument would require unjustifiable discrimination, which was not advanced. Ward LJ’s dissent would have construed the provision purposively by comparing facilities for passenger aircraft before and after the works, treating the overall reduction in movements as immaterial.

1. Court of Appeal (Civil Division): On 7 February 2005, Neuberger and Tuckey LJJ dismissed the appeal by a majority. Ward LJ dissented and would have allowed it.
2. Lands Tribunal: Mr George Bartlett QC, President, decided the preliminary issue on 11 December 2003 in LCA2252001. He dismissed the compensation claims on the construction of section 9(6)(b).