The UK Civil Aviation Acts - Case Study Example

Critically examine the Civil Aviation Act 1982 with regard to the sta y defences to Nuisance and Trespass Introduction In answering the above it is necessary to consider the law in relation to noise, in particular with regard to aircraft as well as the rights of individuals to airspace in and around their property. When discussing the problem in relation to noise nuisance, it will be necessary to consider the law in relation to noise from machinery, and other sources as well as aircraft, in order to demonstrate the way in which machinery noise is regulated differently to aircraft noise. It will also be necessary to consider trespass in general terms in relation to trespass by person’s onto another’s land or seepage of chemicals etc to determine whether there trespass on land is treated differently to trespass above the ground1. This paper will also consider what actions the aviation authorities are taking to prevent nuisance of this kind in particular in relation to night flying2 and height limitations that have to be adhered to. This will involve studying case law in this area and in particular examining cases where pilots have been prosecuted for low flights3 or use of aeroplanes late at night. The paper will also look at cases in which pilots have been prosecuted for trespass or nuisance as a result of their negligent flying4. Civil Aviation Act 1982 Aircraft nuisance and noise pollution are governed by the Civil Aviation Act 1982. Under s76 of this Act it states that no action can be taken in respect of nuisance or trespass from aircraft5. Prosecutions for noise nuisance have to be brought under the Air Navigation (Noise Certification) Order 1990 which insists on all UK registered aircraft’s compliance with noise certification requirements. Under the Civil Aviation Act 1982 the Secretary of State has been given the power to designate airports6 at which aircraft noise can be regulated. This is done by setting limits and directions to airport managers7. In line with this the Airports Act 1956 allows the Secretary of State to have noise and track monitoring equipment installed at the designated airports8. Consultation facilities between users and the local authorities can be ordered under s35 AA 1956. The aim of these facilities is to alleviate problems that might arise in relation to noise nuisance9. The legislation applies to all regional and national airports and also includes some of the smaller airports. S78 and 79 CAA give the Secretary of State the power to take action to reduce noise pollution. S78 is specifically in relation to noise caused from the landing and taking off of aircraft, whereas s79 allows for noise insulation grant schemes to be given to households affected by such noise. Environmental Protection Act 1990 The above Act defines noise nuisance as ‘noise emitted from premises so as to be prejudicial to health or a nuisance’. The local authorities are responsible for the enforcement of noise abatement in this area, which also covers noise from model aircraft10. This Act deals specifically with statutory nuisances in relation to noise from fixed sources11 rather than moving ones12. The Environmental Protection Act specifically excludes aircraft though it is still used to regulate the noise from model aircraft13. Height limitations of aircraft The CAA 1982 has placed limits on the height at which an aircraft is allowed to descend to in order to address the problem associated with nuisance and trespass. This relates in particular to residential areas. Under the Act the basic rule is that an aircraft must not fly within 3,000 feet of a crowd of 1,000 persons. The Act also prohibits flight within 1,500 feet of any congested area of a town, village or settlement, unless the area concerned is in close proximity to an airfield. In those cases the height limit does not apply as the aircraft need to fly at such low altitudes in order to land and take off. Pilots are also instructed not to fly within 500 feet of any person vehicle or structure unless it is for the purpose of landing or taking off from a licensed airfield. In R. v McCabe14 the court were asked to consider whether low level flying could be classed as negligent. In this case the pilot was showing off by flying really low over his friend’s house. In giving their verdict they decided that he acted out of bravado but without wilfully intending to cause danger, and fines of GBP 100 or six months imprisonment on each count should be halved with one months imprisonment in default. Similarly in DPP v Roffey (1959)15 the defendant was charged with flying an aircraft within 1,000 yards of an assembly in the open air of more than 1,000 persons assembled for the purpose of witnessing or participating in an organised event, contrary to the Air Navigation Order 1954. The evidence was that the persons assembled were moving in procession. The justices, being of the opinion that the persons were a procession only, and not an assembly in law, dismissed the information. The Divisional Court, allowing an appeal, held that an assembly could be moving or stationary. Exceptions to the height limit The government has recognised the need of aircraft such as police helicopters and rescue services to fly below the permitted levels. In order to accommodate this, the Air Navigation Order (1990) Rules of the Air Regulations make special provision for such aircraft. Similarly, military aircraft have Crown immunity from prosecution, although attempts to limit the disturbance are made by the Ministry of Defence. Although the military deal differently with military aircraft, pilots who fly too low can face disciplinary action of court martial for failing to comply with flight heights. In R. v Jackson [2006]16 the defendant was subject of a court martial. In this case the pilot appealed against his conviction for unlawful low flying contrary to the Air Force Act 1955 s. 51. The defendant had been involved in a fly past, in which he flew his plane at below 100 feet and collided with a tower, causing damage to both. In interview he stated that he did not know how he had ended up flying so low and that the instrument that indicated the height at which the plane was flying was not altogether reliable. He also said that his actions were unprofessional, illegal and that he had no defence or excuse. The judge determined that the offence under s. 51 was one of strict liability. The pilot appealed on the basis that the judge was wrong to find that the s. 51 offence was one of strict liability. The appeal was dismissed stating that the ruling of the judge had been impeccable. The offence of unlawful flying under s. 51 was one of strict liability. Given the defendants answers in interview, it was inevitable that the Court Martial would find that he should have been aware that he was flying very low. By contrast in Dennis v Ministry of Defence [2003] EWHC 79317 the court held that although the noise level caused a nuisance it was in the public interest not to prevent the pilots training in this manner. In this case the applicant was attempting to prove that the noise caused by aircraft at a military base breached the human rights of persons living nearby and constituted a nuisance. The complainants were a husband and wife who applied for a declaration that the noise constituted a nuisance and sought damages18. The MoD argued that the flying activity was a necessary part of training and was in the interests of national security and nothing could reasonably be done to improve the situation. The court, agreeing with the respondent, rejected the claim made by the applicant. Licensing of airfields In order for an airfield to be licensed the airfield must meet the requirements of s5 CAA. S6 of this Act deals specifically with noise, vibration19 and pollution as well as other disturbances associated with an airfield20. Airfields that have been in use prior to the start of the CAA are not required to meet the standards set by the Act. The same Act also covers nuisance caused by helicopters21 and other types of aircraft, however noise nuisance can be hard to legislate for with regard to such craft as they have the ability to land in areas not covered by designation22. If an area is going to be used as a permanent landing site for helicopters then planning permission is required. Temporary use of the land for this purpose can be granted for up to 28 days under the General Development Order 1988. This order does not limit the number of landings and take-offs that can occur on that land during the 28 days of usage23. Continued use entitles the local authority to withdraw the rights granted by the Order and make the landowner obtain the necessary planning permission. As a general rule helicopters may not fly over a town within 1500 feet above the highest object and they cannot fly within 2000 feet of it. Setting the standards The International Civil Aviation Organisation24 is responsible for setting the International Legislation Noise Standards. The UK has a responsibility to incorporate these standards into their own recommendations as can be evidenced in the Navigation (Noise Certification) Order 1990. The inability of action being taken against aircraft for nuisance or trespass25 dates from the Air Navigation Order 1920 when aircraft were exempted from nuisance legislation to encourage growth in the air industry. A white paper produced in 1993 entitled ‘A New Deal For Transport lays down proposals to help airports enforce mitigation measures26. All aircraft must carry a noise certification before it will be allowed to land or take off27. The Civil Aviation Authority has the power to provisionally suspend any noise certificate, approval, exemption or other document issued under this Order pending inquiry into or consideration of the case. The CAA may, after sufficient ground being shown to its satisfaction after due inquiry, revoke, suspend or vary any such certificate, approval, exemption or other document28. If a noise certificate has been revoked or suspended the person attempting to use the aircraft is likely to be prosecuted29. Any person who holds a noise certification can face charges if the certificate is lent to another person for them to use. Pilots who do not comply with the certification order can be prevented from flying. Acceptable noise levels Acceptable levels are governed by Schedule 1 Part 1 of the Air Navigation Order (1990) Rules of the Air Regulations. The schedules contained in these Regulations set acceptable limits for various types of aircraft. The recommendations in this order are endorsed by The Aeroplane Noise (Limitation on Operation of Aeroplanes) Regulations 1993. S13 makes exemptions for various reasons including exceptions in respect of planes of historic value. Those who fly without a noise certificate might be subject upon summary conviction in Great Britain to a fine not exceeding level 3 on the standard scale. The necessity of a pilot to hold a noise certificate is governed by the Airplane Noise Regulations 1999, which also lists the exemptions that might exist and when they cease to exist. Night flights Frequent complaints are made in respect of disturbance caused by night flights. Studies have demonstrated that even very low level noise can cause sleep disturbance. The World Health Organisation argued that noise pollution can cause interference with communication, sleep disturbance, increased annoyance responses, noise-induced hearing loss, learning acquisition, performance effects, and cardiovascular and physcophysiological effects. Studies have been carried out on children of reading age in schools under flight paths and the results appear to suggest that the reading age of children in schools under flight paths is below the national average. Restrictions were first imposed on night flights in Heathrow30 in 1962. Since then several other airports have had similar restrictions imposed31. The Government undertook to consult on a new night noise regime in 2004, and decided that the existing limits on night flights should remain until 2012. In 2001 the Heathrow Association for the Control of Aircraft Noise (HACAN) took their case to the European Court of Human Rights. The ECHR sided with the government balancing the economic interests of airlines in providing night flights against the welfare of local people. The publicity caused by the case led the government to review night flights. This in turn led to the Civil Aviation Bill which outlined the measures required to tackle the noise problem, highlighting in particular: the need to promote low noise engine and airframe research and technology; complete integration of the International Civil Aviation Organisation guidelines on noise control; implement EU directive 2002/49/EC regarding noise mapping; widen the use of economic instruments such as differential landing charges and amend and strengthen existing domestic legislation. In the subsequent case of Hatton and Others v UK, 2003 the court held that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights Conclusion From the above it can be noted that there are occasions in which the court will find the actions of the pilot can amount to a nuisance or trespass over the land of another. The height and noise limitations, in particular, are likely to give rise to a successful claim if the appellant can demonstrate that the pilot ought to have known that he was flying too low, or in the case of noise, if the pilot does not hold a noise certification for the aircraft. Difficulties can arise in proving nuisance and trespass in cases where the applicant is in close proximity to a licensed airfield. In these situations, the courts have difficulty in determining that a nuisance or trespass has occurred, as the aircraft have to invariably fly at a lower altitude in order to take off or land, and this is also likely to create noise disturbance, which would ordinarily be of an unacceptable level. Exceptions are in place in order to prevent rescue services and the police from facing prosecution in respect of night flights, low level flying and noise disturbance. This is a necessary evil, without which they would not be able to carry out the functions they were designed to fill. Similar exceptions are made for military aircraft, although prosecutions are not uncommon if it can be proven that the pilot was negligent in his flying. 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