The facts

Walcot Hall is situated about two miles from the main runway at RAF Wittering where young pilots are trained to fly Harriers. As they come in to land, the jets fly right over Walcot Hall. The noise that results is described as ‘fearsome’, particularly when the pilots practice making a slow landing which involves the use of the Harriers’ nozzles in order to increase the uplift effect.

Mr and Mrs Dennis brought proceedings against the Ministry of Defence, claiming that the disturbance caused to their enjoyment of Walcot Hall by the RAF was an actionable nuisance and that it was also in breach of their human rights.

There was little doubt on the face of it that the noise disturbance constituted a nuisance, but could it be justified on the basis that it was in the public interest? It could be argued that it is essential for the defence of the realm to have a state-of-the-art air-strike force and that this inevitably involves the training of pilots.

The decision

The judge had to consider in what circumstances and to what extent public interest can amount to a defence to a claim of nuisance. There are a number of earlier cases on the point. In particular, the ‘cricketing’ case of Miller v Jackson in 1977 considered similar issues but in somewhat less extreme circumstances.

Mr and Mrs Miller bought a house which had just been erected next to the village cricket ground in Burnopfield, County Durham. Over the next few years cricket balls rained down on the house and garden – four hit the house, breaking windows and damaging brickwork and tiles – and Mrs Miller became so upset about it all that she and her husband took to going out when the cricket ground was being used. They lost their case.

In the Court of Appeal, Lord Denning held forth on the glories of village cricket which ‘is the delight of everyone’ and could not believe that the cricketers had been rude or impolite to Mrs Miller when they went to retrieve their balls. He was of the opinion that the right of the cricket club to continue playing cricket on the ground (as they had done so for 70 or more years previously) was ‘an ordinary use of land’ which took precedence over the right of the ‘newcomer’ to sit in her garden undisturbed. It was a contest between the interest of the public at large and the interest of the private individual. He said that:

‘… the public interest lies in protecting the environment by preserving our playing fields in the face of mounting development and by enabling our youth to enjoy all the benefits of games such as cricket.’

The public interest should prevail over the private interest, and the Millers were told that if they did not like it then perhaps they should move elsewhere.

The continuous screeching of Harrier jets over the rooftops of Walcot Hall is perhaps a far cry from the occasional cricket ball lobbed over a garden fence. The judge decided that flying Harriers, unlike a game of cricket, is not ‘an ordinary use of land’ and that if military activities generally were to be regarded as such in the context of nuisance, then this would logically extend to testing state-of-the-art explosives including nuclear devices.

He held that a nuisance had been established, but went on to grapple with the issue that the public interest clearly demanded that RAF Wittering should continue to train pilots. In this context, he relied on the Court of Appeal decision last year in Marcic v Thames Water Utilities Ltd which also concerned nuisance but nuisance which had been caused by a use authorised by statute.

In Marcic, Thames Water’s sewers were inadequate and repeatedly discharged foul drainage onto the claimant’s property, causing damage. Plainly, the continued operation of sewers is a matter of public interest, and statute recognises that by giving water authorities the necessary powers to carry on their undertakings. There does, however, remain a common law duty on their part to ensure that reasonable care is exercised by them in the performance of their operations and, in this case, Thames Water had failed to do this.

It tried to justify its conduct by claiming that its system of priorities in dealing with flood problems was a fair way of devoting limited resources to a widespread problem, but the trial judge was not persuaded. His decision was confirmed by the Court of Appeal, which held that where an authority carries on an undertaking in the interests of the community as a whole, it may have to pay compensation to individuals whose rights are infringed by that undertaking. In other words, Thames Water was able to continue its nuisance but was liable to the claimant in damages. In this way, a fair balance was achieved between the interests of the individual and the community.

The judge in Dennis took his lead from this and extended the principle to conduct which, although not authorised by statute, was still necessarily in the public interest. Harriers will therefore continue to disturb the peace at Walcot Hall for a good few years to come, but Mr and Mrs Dennis were awarded nearly £1m damages in compensation.

The judge only touched on the human rights issues because he did not believe that they added very much. He did, however, say that if, contrary to his view, the common law of nuisance did not provide a remedy in a case such as this because, for example, the public interest prevents a nuisance arising in law, then the claim under the Human Rights Act 1998 would be relevant. He was of the view that the claim would succeed because the conduct was a breach of the right under Article 8 of the European Convention on Human Rights to respect for a person’s home and the right under Article 1 to peaceful enjoyment of possessions. Marcic went slightly further in actually confirming that there were breaches of these two Articles of the Convention.

Comment

This case makes clear that nuisance caused by conduct which is of benefit to the community at large may be continued but the public (or more accurately the taxpayer) will have to foot the bill for the individuals who suffer as a result. This is an important extension of the common law position. The decision may perhaps have been influenced by the liability which existed under the human rights legislation, but the court seemed to be keen to justify its decision on common law grounds and less enthusiastic to base it on human rights. This approach may well change as human rights claims are made more frequently.

Case references

Dennis v Ministry of Defence [2003] EWHC 79

Miller v Jackson [1977] 3 All ER 338

Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 64

Source: Mayer, Brown, Rowe and Maw June 2003

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