Peires v Bickerton's Aerodromes Ltd

For aircraft-noise nuisance, the statutory concept of flight is not confined to lateral travel. A helicopter manoeuvre involving rising, turning and landing may be flight or an ordinary incident of flight. The immunity under section 76(1) of the Civil Aviation Act 1982 depends on reasonable height having regard to wind, weather and all circumstances, together with compliance with relevant aviation orders. It does not impose a separate general requirement that the flight or its ordinary incidents be reasonable. The immunity is relevant only because the conduct would otherwise be an actionable nuisance. The Court of Appeal left the scope of section 77(2) undecided.

Lorna Peires owned residential property near Denham Aerodrome, operated by Bickerton’s Aerodromes Ltd. She alleged that repeated helicopter training exercises on sloping ground caused an unreasonable noise nuisance.

The High Court found a private nuisance, rejected the statutory immunities under sections 76(1) and 77(2) of the Civil Aviation Act 1982, and granted an injunction. The defendant appealed. Permission was granted on two grounds, but the Court of Appeal heard argument only on the statutory-immunity ground. Mrs Peires also cross-appealed against the refusal of damages. The central issue was whether the helicopter exercises fell within the statutory meaning and immunity of flight.

The appeal was allowed and the cross-appeal was dismissed. The Court of Appeal decided the appeal on the first ground. It was therefore unnecessary to hear argument on the other permitted ground or on the cross-appeal.

1. Section 105(1) of the Civil Aviation Act 1982 defines flight as a journey by air beginning when an aircraft takes off and ending when it lands. The judge had wrongly confined flight to lateral travel between fixed points. There was no basis for excluding a helicopter operation involving rising, turning and landing.
2. The definition in the Act was reinforced by article 3 of the Air Navigation Order 2016. Under that provision, the period from the aircraft’s first movement under its own power for take-off until it comes to rest after landing is flight. The mandatory training requirements and the published exceptions for helicopter manoeuvres within an aerodrome were consistent with treating the exercises as flying. There was no finding that the manoeuvres were outside normal aviation practice or unauthorised because of the 60-metre requirement.
3. The judge also wrongly treated general reasonableness as a condition of the section 76(1) immunity. The specified reasonableness requirement concerns the aircraft’s height, having regard to wind, weather and all the circumstances, together with compliance with the relevant aviation orders. There was no finding that the helicopters’ height was unreasonable. The complaint concerned frequency and duration, and the immunity presupposed that the use would otherwise constitute an actionable nuisance.
4. Bernstein v Skyviews & General Ltd [1978] 1 QB 479 did not support a general reasonableness requirement. The relevant observation in that case was that the protection extended to flights at a reasonable height complying with the statutory provisions.
5. The Court declined to determine the general or particular application of section 77(2). Although it could see no proper basis for saying that the training did not involve taking off or landing, the further argument that section 77 concerned activities on the ground had been raised too late and in unsatisfactory circumstances.

1. Court of Appeal (Civil Division) In [2017] EWCA Civ 273, the defendant’s appeal was allowed on the statutory-immunity ground. The respondent’s cross-appeal concerning damages was dismissed.
2. High Court of Justice, Chancery Division Mr Justice Peter Smith found a private nuisance, rejected the statutory defences, and granted an injunction by orders dated 17 March and 25 April 2016.