|
King v The Advocate General for Scotland [2009] CSOH 169 |
|
Background The facts of the case were straightforward. The pursuer resided in premises which were situated near castle Douglas. The area was used by the Royal Airforce for the purposes of low-flying training. The pursuer claimed that the noise from military aircraft which flew at a height of less than 250 feet above the ground created an unacceptable level of disturbance and, therefore, amounted to a nuisance in law. The pursuer claimed that the noise from the aircraft had not only caused her great personal annoyance but had also caused physical injuries to the horses which she kept on the premises. The pursuer alsoclaimed that the noise amounted to an infringement of her rights under Article 8 of the European Convention of Human Rights (the Convention) and also Article 1 of Protocol 1(which guarantee respect for family life and home as well as the right to peaceful enjoyment of property and possessions). Decision The Lord Ordinary (Lord Pentland) held that the pursuer (who represented herself) had failed to adduce sufficient evidence to support her action, both in terms of nuisance and, also, in terms of the Convention. In the last analysis, the amount of flights which the RAF had actually made over the pursuer’s property was substantially less than the pursuer had claimed. The pursuer had also failed to lead any evidence of the noise levels to which she was exposed. Furthermore, she had not adduced any veterinary evidence to support her claim that her horses had sustained injury. Comment This case is interesting in so far as it is (to the author’s knowledge) the first time that legal action in Scotland has been brought against the Ministry of Defence in respect of noise from military aircraft. The Crown is normally immune from any civil action in relation to military training exercises by virtue of s11 of the Crown Proceedings Act 1947. The only other case where an action has been brought before the courts is the first instance English case of Dennis v MoD. In that case the claimant successfully sued the MoD in respect of the noise which was generated by low-flying aircraft over his estate. It is, of course, well-established in the law of nuisance, that one of the factors which the courts take into account when determining if a nuisance exists is the social utility, or usefulness, of that which is the subject matter of the nuisance action. As far as liability in terms of the law of nuisance was concerned Buckley J held, not unsurprisingly, that the flying of military aircraft redounded to the benefit of the general public. However, to take such a factor into account in ascertaining whether a nuisance existed, would, in Buckley J’s view, have deprived the claimants of a judicial remedy under the common law. Rather, in his Lordship’s view, the growing corpus of human rights law dictated that the appropriate remedy under the law of nuisance should be damages as opposed to, for example, an injunction or a declaration. His Lordship went on to decide that the noise in question also flouted the claimant’s rights under Art 8 of the Convention. Buckley J concluded that the damages which fell to be awarded by way of remedy in terms of the Convention would be satisfied by damages which fell to be awarded under the law of nuisance. In King, since he had already concluded that the pursuer had not established that a nuisance existed, Lord Pentland did not find it necessary to decide whether the approach which was adopted in Dennis accorded with the law of Scotland. Therefore, this issue awaits judicial decision north of the Border. Francis McManus Edinburgh Napier University |