Noise Nuisance

Lorna Grace Peires v. Bickerton Aerodromes Ltd [2016] EWHC 560 (Ch)

Background

The claimant owned a property near to the defendant's aerodrome. One of the activities at the aerodrome was the taking off and landing of helicopters during training exercises (the Activity). The claimant alleged the defendant was liable for causing a private nuisance due to the noise of the Activity.

Issues considered by the court

The court considered the parties' stance on the nature and frequency of the noise of the Activity, which were unsurprisingly polarised: the claimant argued that the noise of the Activity was excessive and unreasonable. The defendant argued that the noise of the Activity was neither excessive nor unreasonable and no worse than other operations at the aerodrome.

The court grappled with the law (arguably with mixed results) on the acquisition of a right to commit a nuisance by prescription. The defendant argued that, as helicopter activity had commenced at the aerodrome in the early 1960s, it had acquired a prescriptive right to carry on the Activity.

The court also considered whether the defendant's activities were not a nuisance because they were not liable for the actions of their licensees (the helicopter pilots) and/or within limited statutory defences provided by, amongst other legislation, the Civil Aviation Act 1982.

Decision:

Peter Smith J granted an injunction in favour of the claimant to regulate the future operation of the Activity. He considered it was an unreasonable nuisance and an unreasonable interference with the claimant's use of her property.

Reasoning:

Peter Smith J acknowledged that in certain circumstances the right to make a noise nuisance can be established by prescription. His judgment identified three difficulties in his view to establishing such a right:

the defendant has to show 20 years' continuous use, which can only begin when the noise amounts to a nuisance; how to establish the precise extent of the right to cause a noise nuisance which has actually been acquired; how much more noise (if any) can be emitted pursuant to the claimed right than had been emitted in the 20-year use. Peter Smith J rejected the claim that the defendant had acquired a prescriptive right to cause a noise nuisance as (i) the Activity had been carried on despite protests and therefore an easement cannot have been acquired as it would have been established by force and (ii) it had provided no evidence about the extent of noise...