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When the defence of the realm constitutes a plain nuisance

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Two quintessentially British institutions which have existed uneasily side by side in the Cambridgeshire countryside for nearly a century were pitched against each other recently in a courtroom conflict concerning individual rights and public interest.

Walcot Hall Estate, near Peterborough, has been the home of the Dennis family since the l960s.The Hall, a Grade I-listed Carolean mansion built in 1678, stands in a traditional agricultural estate of 1,387 acres.

Two miles away RAF Wittering has, since 1969, been the 'Home of the Harrier', training pilots to handle this state-of-the-art, vertical-takeoff-and-landing fighter jet. The Harrier is a noisy aircraft, particularly when executing emergency circuits and making a slow landing. Maximum noise levels measured off the base were typically 70dBA-100dBA a day, compared with a vacuum cleaner three metres away at 70dBA and a pneumatic drill five metres away at 100dBA.

The Dennis family described the noise more prosaically. Mr Dennis said it was deafening and completely invasive, stopping conversation and thought. Mrs Dennis explained how the children would run from the garden with their hands over their ears as aircraft flew past. The estate secretary's diary recorded 'dogs cowering', 'pointless trying to use telephone' and 'Harriers absolutely terrible'.

A passing film location manager described the noise as 'particularly fearsome'and visitors to the estate simply asked: 'How can you stand it?'

Complaints were made to the MoD throughout the 1980s and '90s. The MoD's response was consistent - that Wittering is the main Harrier base in the country and plays a vital part in the nation's defence; that the flying activity was a necessary part of training pilots; and that, with apologies, nothing could reasonably be done to improve the situation.

As a final irony, Walcot Hall fell within the ambit of the MoD's insulation scheme, but its listed status precluded double glazing. In 1996 Mr Dennis started court proceedings, effectively for an injunction for nuisance and damages of £10 million. The scene was set for a clash between public and private law: between the quiet enjoyment of an Englishman's castle and the defence of his realm.

Dennis v MoD (judgment 16.4.03) raises the important point of whether the public interest can amount to a defence to a claim in nuisance. It was plain that the noise was a nuisance. The MoD argued, however, that using land to support the defence of the realm was to everyone's advantage. The court had therefore to decide whether the public interest of maintaining a state-of-the-art air strike force provided immunity to a claim for private nuisance. The judge disagreed that any activities that generated extreme noise or pollution could be justified as ordinary use of land. He also rejected the MoD's case that it had obtained the right to fly, much like a right to light, by doing it for more than 20 years. Such rights are only obtained if they are exercised nec vi, nec clam, nec precario , that is without force, stealth or licence. It would be hard to imagine a greater use of force than the MoD's insistence on flying Harriers.

Instead, the court held that the public interest clearly demanded that RAF Wittering should continue to train pilots, but that was not to say that the claimants should go uncompensated. Their losses were calculated on the basis that the estate, however beautiful, was blighted by the noise and, as one expert pointed out, the property was in the market of the 'super rich'and they are 'the fussiest buyers'.

Happily for the claimants, the MoD plans to phase out Harriers by 2012. Thus, although the judge found that it was an extreme case - the blight could be valued at £4 million - because the family had no plans to sell and their ordeal would be over in nine years he awarded a figure for past and future losses and loss of amenity of £950,000.

The judge concluded with an endorsement of the claimant family's 'highest regard' for the RAF and the vital role it plays in the nation's security.

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