Common Sense Prevails: Court of Appeal Clarifies Flight of an Aircraft

Thu, 13 April, 2017

Leading aviation specialist Tim Marland acted for the successful appellant aerodrome in Peires v Bickerton’s Aerodromes [2017] EWCA Civ 273, an important decision in the Court of Appeal on the scope of the statutory immunity for nuisance under s.76(1) of the Civil Aviation Act 1982.

Since 1920 there has been a statutory immunity against actions for trespass or nuisance caused by aircraft in flight. The latest incarnation of this immunity is to be found in s.76(1) of the Civil Aviation Act 1982, and is extended to aircraft on the ground by virtue of s.77(2). In Peires v Bickerton’s Aerodromes, the Claimant, who owned a large house less than 60 metres from the boundary of Denham aerodrome, brought a noise nuisance complaint against the owners of the aerodrome in relation to the noise generated by helicopters performing a training exercise on sloping ground just inside the boundary and therefore close to her house.

At first instance Peter Smith J held that the immunity did not apply since the training operation did not involve “a flight” within the meaning of the immunity and the frequency and duration of the activities meant that they were not reasonable within the meaning of s.76(1). Tim Marland was instructed by the aerodrome for the appeal. The Court of Appeal held that the judge’s interpretation of the statute could not be justified. In reliance on the definition of ‘in flight’ in the Air Navigation Order 2016, and by  reference to inter alia the Standardised European Rules of the Air,  it was clear that ‘flight’ included helicopters manoeuvring to perform standard training activities. It was also clear that the only element of reasonableness within the statute was as to height, not as to matters such as frequency or duration – indeed, the very existence of the immunity presupposed that the activities complained of would be, from a common law perspective, unreasonable.

The Court of Appeal gave a written judgment in recognition of the wider implications of this decision, in particular the safety implication which would attend if helicopters performing aerial manoeuvres were not ‘in flight’ and therefore not subject to the safety regulations set out in SERA and the Air Navigation Order. In its judgment the Court has confirmed the width of the immunity and that it is not confined to flights from A to B, but essentially covers all aerial activity which is compliant with the Air Navigation Order.

A copy of the judgment is available here.