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Wednesday, 19 September 2012

A flying nuisance

I have a friend who grew up in the 1970s near to RAF Waddington, where Vulcan bombers were based. He has dryly remarked on more than one occasion that those who complain about noise from Heathrow should try having four Olympus engines in a holding pattern above their house for half an hour or so. I myself have seen B.2 XH558, the last surviving Vulcan, flying at an airshow, where a different friend accurately summed up the noise as “the sound of doom”.

But the Vulcan bomber hails from a very different age. It first flew in 1952, when the British jet industry was in its heyday. That year a disastrous crash of a DH 110 at the Farnborough Air Show left 29 spectators dead. Not only did none of the survivors or the families of the deceased sue anyone afterwards, the organisers did not even stop the event. Instead the dead bodies were cordoned off and the rest of the day proceeded on schedule.

No doubt the primary reason was that all adults present had lived through the war, and would therefore have experienced even worse tragedies many times. Their respect for the forces would also have been of a different order to the present day.

In more recent times, by contrast, the European Court of Human Rights has had to grapple with the aforesaid Heathrow denizens bringing proceedings about aircraft making them lose sleep. The claim was rejected, though not without a few newspaper columnists dispensing insults about pointless claims and an enfeebled age.

Now the Telegraph reports that a different homeowner, one Mr John Jones, has tried a more direct form of action after RAF jets overflew his property on a regular basis. Mr Jones contended that the pilots were acting like “hooray Henrys” and “opening the throttle” over his property up to 75 times a day. In response he raised a weather balloon and warned the nearby airbase of its presence. He has since made a complaint to the Civil Aviation Authority.

If it were a purely civilian matter things would be easier for Mr Jones. He could simply sue for nuisance and it is hard to imagine that any private activity which generated the sort of noise that a low-flying fast jet does would not result in the perpetrator either being compelled to stop or to pay substantial damages or both.

Where the military is concerned, however, there is a substantial countervailing factor in the form of the public interest in an effective defence force. That means, among other things, regularly flying fast jets for training and patrols, and of course the planes have to fly somewhere. In a small and relatively crowded country like the United Kingdom the chances of them always avoiding civilian areas are slim.

Moreover, tight controls about speed and altitude are properly imposed on civilian pilots, but fighter pilots have to hone their skills flying as low and as fast as possible.

Similar issues were considered in the case of Dennis and another v Ministry of Defence [2003] All ER (D) 300 (Apr). Mr Dennis, the owner of an estate in Norfolk, brought an action against the Ministry of Defence arising from the loss of amenity caused by Harrier jets flying from RAF Wittering. The claim was brought in common law nuisance and for breaches of Art 8 of and Art 1 of the First Protocol to the European Convention on Human Rights. Mr Dennis was anxious that the judge accept that he was a supporter of the RAF and that he strongly believed in the need for a fast jet force – just not in his backyard.

The approach the judge took was that while the public interest should be considered in relation to nuisance, selected individuals should not be forced to bear the cost of the public benefit. It was therefore appropriate to weigh the public interest not when deciding whether a nuisance existed, but at the remedy stage. That way, it would be open to the court to allow the nuisance to continue while requiring the public as opposed to Mr Dennis alone to pay for its benefit.

In the event Mr Dennis was awarded damages of £950,000 and the flying was permitted to continue (or rather it was, until the Harrier fleet was retired in somewhat controversial circumstances).

Assuming, therefore, Mr Jones is not satisfied by his complaint to the CAA, he might bring an action along the lines of Mr Dennis. Whether he would succeed would depend on the particular facts, but the earlier case gives an example of how the public interest can be preserved without eviscerating the claimant’s private rights.

One hopes matters do not get that far, if only because the ever-shrinking defence budget could better be spent elsewhere. Then again, there is no justification for the military to have carte blanche to fly anywhere it likes in peacetime: Britain is not, after all, a military dictatorship. Moreover, the fundamental importance of property rights – key to our freedom and economic prosperity – requires that when the state does something which reduces the value of a citizen’s property, the citizen should be compensated, even if there is a strong public interest in the state’s activity.

Accordingly, absent a compelling military need, there is no justification for permitting the more adventurous pilots regularly flying low and fast with no compensation to affected citizens, and cases such as Dennis show the sort of sensible compromise that can be reached.

Some hardened RAF veterans might be unimpressed. Even in the halcyon days of the British jet age, however, fairly strict controls were imposed by the RAF itself on flying over residential areas. Also, they might even see an upside. Flight Lieutenant Alan Pollock’s legendary protest by way of flying through Tower Bridge in a Hawker Hunter jet (memorably described in James Hamilton-Paterson’s book Empire of the Clouds: When Britain's Aircraft Ruled the World (2010)) was, I suspect, all the more satisfying for him knowing how many regulations he must have been breaking while he was doing it….

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