Peires v Bickerton's Aerodromes Ltd

Private nuisance is assessed objectively by balancing the claimant’s reasonable enjoyment of land against the defendant’s reasonable use of its land. The character of the locality and established background activities are relevant, but an existing activity may become a nuisance through increased intensity, duration, frequency or intrusiveness. Unpredictability and the defendant’s ability to reduce the interference are also material. A statutory aviation protection applies only within its precise terms and does not provide carte blanche for unreasonable operations. Where noise constitutes an actionable nuisance, an injunction regulating its timing and location may be preferable to damages, particularly where the defendant can reasonably mitigate the interference.

The claimant owned a substantial residential property adjoining the defendant’s long-established licensed aerodrome. She complained only of helicopter training exercises involving repeated hovering, landing and taking off on sloping ground close to the boundary. Other aerodrome activities were accepted as part of the background noise.

The central issues were whether the training activity constituted an unreasonable interference with the claimant’s enjoyment of the property, whether the defendant had acquired a prescriptive right to conduct it, whether the defendant was liable for operations undertaken by its licensees, and whether statutory aviation protections applied.

1. Private nuisance. The helicopter training was an actionable private nuisance. Applying the objective approach in Lawrence v Fen Tigers [2014] AC 822, the court balanced the claimant’s right to reasonable enjoyment against the defendant’s right to use the aerodrome. The locality contained substantial established aviation noise, but the complained-of exercise was materially more intrusive because it produced sustained noise at a relatively constant level, unlike ordinary transient take-offs and landings.
2. Relevant considerations included the character of the locality, the established pattern of uses, the frequency and duration of the activity, its unpredictability, and whether the defendant could reasonably abate or minimise the interference. The defendant’s refusal to consider relocation, landscaping, fixed operating periods or other mitigation counted against it. On the preferred evidence, the activity was excessive and unreasonable.
3. Prescription. The claim to a prescriptive right failed. A prescriptive period could begin only when the activity amounted to a nuisance, and the evidence did not establish the extent or level of the alleged easement. In any event, sustained complaints dating from 1970 meant that the use was not enjoyed as of right for an uninterrupted period of 20 years.
4. Liability for licensees. The defendant could not disavow the activity of its licensees. It had authorised the training operation, received payment for it, and knew that the operation formed part of the licensees’ business. It was therefore liable for the helicopter activity on the slope.
5. Statutory protections. Sections 76(1) and 77(2) of the Civil Aviation Act 1982 did not protect the activity. The exercise was not “flight”, nor ordinary incidents of flight, taking-off or landing, and it did not fall within the relevant aviation exemptions. Regulation 11 of the Air Navigation (General) Regulations 2006 likewise did not apply. Even if section 76 applied, its reasonableness requirement would not sanction the activity at the level carried on.
6. Remedy. The appropriate remedy was an injunction permitting two fixed 15-minute periods each week, at an agreed and permanently marked location. The parties were encouraged to agree reasonable flexibility and to explore relocation. If agreement failed, the court would impose the times and location. The claimant succeeded; damages were assessed contingently at £583,000 if the injunction were discharged.

First-instance judgment. No appellate history is stated in the judgment.