Brunt & Ors v Southampton International Airport Ltd. [2005] EWCA Civ 93

Case No C3/2004/0335/LATRF[2005] EWCA Civ 93
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
(Mr George Bartlett, QC)
LCA2252001
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 7 th February 2005
Before
LORD JUSTICE WARDLORD JUSTICE TUCKEYLORD JUSTICE NEUBERGER
Between
Nigel Richard Pierce Brunt1 st AppellantAlastair George The Viscount Chilston2 nd AppellantJohn Dudley Harding3 rd AppellantIan Richard McKellen Parker4 th AppellantTimothy Roger Smith5 th AppellantRichard Rainsbury6 th AppellantDavid Owen7 th AppellantSouthampton International Airport LimitedRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Timothy Fancourt Esq, QC (instructed by Messrs Dutton Gregory of Winchester) for AppellantsAndrew Tait Esq, QC (instructed by The Legal Department, BAA plc of London, SW1) for Respondent
Judgment

Introductory

[1]This is an appeal from a decision of Mr George Bartlett QC, the President of the Lands Tribunal, given on 11th December 2003. It involves a point of statutory construction, the centrally relevant provision in question being s9(6) of the Land Compensation Act 1973 (“the 1973 Act”). All references to sections hereafter are to sections of that Act, unless otherwise stated.[2]The President had to determine a preliminary issue, which arose out of a number of claims for compensation in respect of noise from aircraft using Southampton Airport (“the Airport”). The claims were brought by owners of houses in Twyford, near Winchester, who are the appellants in this court. Their houses are approximately seven kilometres north-north-east of the northern end of the Airport runway, and immediately beneath one of the principal flight paths of aircraft taking off and landing there. They contend that the value of their houses has been diminished by increased noise from aircraft movements arising from alterations made at the Airport between 1993 and 1995.[3]There was no dispute that there were substantial works to the taxiways and aprons at the Airport in that period. The dispute between the claimants and the compensating authority, Southampton International Airport Limited (“SIAL”), is whether the purpose of those additions and alterations fell within the ambit of s9, and therefore entitled the claimants to seek compensation.[4]In summary terms, the issue before the President was whether the claimants could bring themselves within the scope of s9(6), in circumstances where the proposed alterations to the Airport were not anticipated to have, and did not have, the effect of increasing the aggregate number of aircraft movements at the Airport, albeit that they were intended to facilitate a substantial increase in movements of larger aircraft, at the expense of movements of smaller aircraft.

The legislation

[5]Part I of the 1973 Act is headed “Compensation for depreciation caused by use of public works”. It represented a new statutory code which came into force on 23rd June 1973, and was based on the White Paper “Development Compensation - Putting People First” (Cmnd 5124, published on 17th October 1972). Part I is retrospective, albeit only to the extent that it applies to works first used on or after 17th October 1969 - see s1(8) and (9). As a rough summary, it provides for compensation to be paid to owner-occupiers and certain tenants of residential and agricultural land, in circumstances where the value of such land is depreciated by the physical impact of highways, aerodromes, and other works provided or used pursuant to statutory powers.[6]Accordingly, in a case where public works were first used before 17th October 1969, no compensation for the use of those works can be claimed. In cases of first use after 17th October 1969 (the date of such first use being the “relevant date”), no claim can be made before the passing of 12 months from the relevant date (defined by s3(2) as the “first claim day”) and thereafter a six year limitation period applies. Compensation is to be based on depreciation in value, and such depreciation is to be assessed in light of the impact of the use as it was on the first claim day, subject to “any intensification that may then be reasonably expected of the use of those works in the state in which they are on that date” - see s4(2).[7]Section 9 provides for a later “relevant date” where alterations to, or changes of use of, public works occur after the actual first use of the works. Where s9 applies, the relevant date is deemed to be the date on which the works are first used after the alterations or change of use. Thus, if an aerodrome was constructed before October 1969, and a new runway was built and used in, say, 1990, there could be no claim in respect of the original work of construction, but a claim could be made between 1991 and 1997 in respect of the new runway.[8]Special provision is made in s9 for aerodromes. In particular, s9(3) excludes the application of the section to “alterations to an aerodrome” unless they are “runway or apron alterations”. The expression “runway or apron alterations” is defined in s9(6) as meaning:
“(a) the construction of a new runway, the major realignment of an existing runway or the extension or strengthening of an existing runway; or (b) a substantial addition to, or alteration of, a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft.”
I shall refer to works falling within s9(6)(a) as “runway alterations”, and works fallings with s9(6)(b) as “apron alterations”.[9]As Mr Timothy Fancourt QC, who appears on behalf of the claimants, puts it, s9(3) and (6) operate as a filter on the bringing of claims. Various policy reasons may have been thought to justify the imposing of the filter, such as the fact that aerodromes are more frequently altered than other public works, that aerodrome traffic affects a larger number of potential claimants than other works, and that people are perhaps more sensitive to intrusive noise from airports than from roads or factories.

The facts

[10]Having identified the relevant statutory provisions, I must turn to the facts as agreed between the parties or as determined below. In this connection, as the President said in his decision, there was substantial agreement on the facts below, and, in light of his resolution of the facts which were in dispute, there is no dispute of fact between the parties on the appeal.[11]The Airport, which has a single runway, was first constructed in about 1910 and was subject to various improvements from time to time thereafter. In July 1989, a planning application involving a significant development was submitted on behalf of SIAL’s parent company, BAA plc (“BAA”); that application was subject to further amendments and refinements during the next three years. On 18th December 1992, a flying controls agreement (“FCA”) and an agreement pursuant to s106 of the Town & Country Planning Act 1990 were entered into with Eastleigh Borough Council. The FCA imposed detailed restrictions with regard to extensions and realignments of the existing runway, the construction of new runways, and the use of the Airport by certain types of aircraft, certain types of aircraft movement, and at certain times. On the same day, 18th December 1992, the council granted outline planning permission for the construction of new facilities at the Airport.[12]When the works implementing the planning permission (“the Works”) were completed, some time in 1995, their effect was as follows. The area occupied by the Airport was actually reduced from 140 to 108 hectares; the runway was substantially unaffected; the areas given over to flight-related activities were substantially increased. In relation to this last aspect, before the Works were carried out, the total area for aircraft movement and parking was just over 28,800 square metres, and this was increased to over 39,000 square metres as a result of the Works.[13]The President said, in paragraph 32 of his decision, that, although the areas for aircraft parking had “increased substantially”, he was not satisfied by the evidence “that this increase in area has provided facilities for the accommodation at the Airport of a greater number of aircraft”. In this connection, the President accepted the evidence given on behalf of SIAL “that it was not the purpose [of the Works] to provide parking facilities for a greater number of aircraft”. As the President went on to say in paragraph 33:
“The main purpose of the redevelopment, including the alterations, was to produce a modern regional airport with expanding commercial passenger traffic. The focus for this expansion was the new passenger terminal, and the aprons [ie, the areas for parking aircraft] associated with the terminal were needed to accommodate the aircraft, including Boeing 757s, which would carry the increasing number of passengers.”
[14]The President then referred to further evidence on behalf of SIAL: “That it was not a purpose of the alterations to increase aircraft movements. On the contrary, the expansion of commercial air traffic would lead to a reduction in general aviation. I accept this evidence.” (paragraph 34 of the decision)[15]There were various documents produced by SIAL between 1989 and 1995, which contained estimates and forecasts as to the intended and expected effect of the Works. These documents revealed slightly different figures, not surprisingly, because many of them were estimates, and they were often based on slightly different dates. The evidence referred to in the decision of the President, which he appears to have accepted, was based on forecasts for the Airport made around 1992. An increase in annual passenger air transport movements from around 21,000 to around 41,000 - ie of about 20,000 movements - was forecast for the period 1993-2006, but the total number of annual flight movements over that period was forecast to fall from 56,800 to 43,000. This apparent discrepancy was explained by the substantial projected drop in the number of smaller aircraft movements, ie movement of non-passenger, training aircraft , and helicopters. So far as passenger numbers per annum were concerned, they were forecast to increase from 510,000 in 1991 to over 1 million by 2006.[16]Between 1995 and 2001, the actual growth in passenger air traffic movements and in individual passengers passing through the Airport have been substantially in accordance with these forecasts. Thus, between 1993 and 2001, annual passenger air transport movements increased from approximately 22,000 to approximately 29,000, and the total annual aircraft movements decreased from approximately 51,000 to some 49,000. In particular, as specifically intended by BAA when deciding to carry out the Works, there has been a substantial increase in the number of relatively large commercial passenger aircraft, and a substantial decrease in the number of smaller aircraft, using the Airport. Thus, there were 130 movements of Boeing 757’s (with 200 or more seats) in 2001, as against none in 1994. There were 634 movements of Boeing 737’s and MD83’s (each with 150 or more seats) in 2001, compared with 16 in 1994.

The issues

[17]It is common ground that: i) the Works carried out to the Airport in the early 1990s were “runway or apron alterations” within s9(3) ; ii) the Works were not runway alterations so that s9(6)(a) is of no assistance to the claimants; iii) the Works constituted “a substantial addition to, or alteration of, a taxiway or apron” within s9(6)(b) ; iv) the claim for compensation consequently turns on whether the “purpose or main purpose [of the Works was] the provision of facilities for a greater number of aircraft” within s9(6)(b) .

The President dismissed the claims on the basis that the claimants could not satisfy s9(6)(b).

(b) :

“… requires … a numerical comparison between the number of aircraft for whom facilities existed before the alterations and the number of aircraft for whom facilities would exist after the alterations. If the facilities after the alterations would provide for a greater number of aircraft, it then becomes necessary to determine whether providing facilities for this greater number was the purpose or main purpose of the alterations. The unit to be considered for the purposes of this comparison is the airport as a whole.”
[19]Mr Andrew Tait QC, who appears for SIAL, contends that the President was right in his approach to the construction of s9(6)(b), on the basis that it requires one to ask whether, after carrying out the alterations or additions, the capacity of the aerodrome, in terms of potential throughput of numbers of aircraft, is intended to be increased over its capacity before the alterations were effected. Although he accepts that it is the purpose, ie the intended effect of the Works which must be looked at, rather than what actually results from the carrying out of the Works, he also argues that it is unrealistic to ignore that actual outcome.[20]For the claimants, Mr Fancourt contends that this approach is wrong. He begins by pointing out that in R (Plymouth City Airport) -v- Secretary of State for Transport, Environment and the Regions [2001] EWCA Civ 144, it was accepted by this court that s9(6)(b) does not require comparison of the numbers of aircraft actually using an aerodrome before and after the alterations, so that it does not require proof that the additions or alterations have led to additional aircraft in fact using the aerodrome. He says that s9(6)(b) gives rise solely to a question of the purpose in the mind of the relevant person, in this case BAA.[21]Mr Fancourt’s primary contention on behalf of the claimants is that s9(6)(b) will be satisfied in any case where the additions or alterations are intended to achieve one (or indeed both) of the following results: i) an increase in the total number of aircraft which can be accommodated at the aerodrome over a year (or other convenient period) - an increase in aircraft throughput, as I will call it; ii) an increase in the total number of types of aircraft which can use the aerodrome - an increase in aircraft types as I will call it.[22]The first of those two contentions is not controversial: indeed, it is effectively the same formulation as that adopted by the President and supported by SIAL on this appeal. Accordingly, the question raised by Mr Fancourt’s principal point is whether s9(6)(b) is satisfied in a case where the aircraft throughput of the aerodrome is not projected to increase as a result of the apron additions but where there is a projected increase in aircraft types. In this connection, as Mr Fancourt points out, if more types of aircraft can use an aerodrome, it follows ineluctably that “a greater number of aircraft” can do so.[23]An alternative argument advanced on behalf of the claimants involves focusing on the President’s finding that the main purpose of the Works in this case was to increase the capacity of the Airport in relation to a particular class of aircraft, and, particularly importantly, to increase substantially (indeed virtually to double) between 1991 and 2001 the annual number of commercial, passenger air traffic movements. In those circumstances, the claimants say, it follows that the main purpose of the alterations was the provision of facilities for a greater number of aircraft, namely around 10,000 extra commercial passenger aircraft per year (10,000 aircraft being the equivalent of 20,000 movements).[24]The claimants further contend that the construction favoured by the President could, and indeed in this case does, produce an anomalous result which is not consistent with the purpose of the 1973 Act. In this case, the Works were carried out with the aim of enabling the Airport to accommodate at least one new class of large aircraft, the Boeing 757, and to increase substantially the number of classes of (slightly less large) aircraft, such as Boeing 737s, with a resultant reduction in the number of small aircraft. Such a change must inevitably, or almost inevitably, increase the nuisance to neighbouring householders, and the overall effect of the 1973 Act, as reflected by the general thrust of the 1972 White Paper, was to afford compensation in such circumstances. Yet, if the President is right, the claimants, although plainly affected by the increased noise, cannot bring themselves within s9(6)(b).[25]As Ward LJ pointed out in argument, the effect of the President’s construction could enable an aerodrome operator to arrange things so as to avoid having to pay compensation under s9. An operator of an aerodrome which hosts an active amateur private flying club could avoid having to pay compensation when it develops the aerodrome so as to accommodate large commercial aircraft, simply by determining the flying club’s rights, provided that the number of new commercial aircraft movements did not exceed the previous number of flying club aircraft movements.[26]On first reading and considering s9(6)(b), my initial reaction was very similar to that of the President. The intended effect of the Works to be carried out in this case was not to increase, indeed it was probably to decrease, the total number of aircraft actually physically using or capable of using the Airport. Although s9(6)(b) is, at least so far as the instant issue is concerned, economically worded, the natural reading of the provision suggests that the “greater number” of aircraft is to be assessed by reference to the total number of aircraft which, over a given period, can be accommodated by the aerodrome in question, ie it must be judged by throughput potential.

The main argument: increase in aircraft types

[27]So far as Mr Fancourt’s principal argument is concerned, the fact that the phrase “a greater number of aircraft” can apply to an increase in types of aircraft, as I have called it, is by no means determinative of this appeal in favour of the claimants. It is true that, as a matter of bare acontextual language, the words “a greater number of aircraft” can be read as having the meaning which Mr Fancourt advances, but their natural meaning, read in context, appears to me, as already mentioned, to be that which the President adopted.[28]As is so often the position in cases of statutory and contractual interpretation, the reason why a particular phrase conveys more than appears from the words of the phrase, read on their own, is attributable to the particular context, and is often difficult to explain. Having said that, given that it is common ground that “a greater number of aircraft” means an increase in aircraft throughput, it is somewhat unnatural to give the term an additional, and somewhat different, meaning, namely an increase in aircraft types.[29]That is not merely a semantic point. If Mr Fancourt’s argument is correct, the same expression covers two different concepts, namely an increase in the total number of individual aircraft which could be physically accommodated by an aerodrome’s throughput capacity over any given period, and the total number of different aircraft (presumably in the world) which could in principle be accommodated by the aerodrome at a given point in time. It is not impossible for the same expression to cover two such different concepts, but it would not involve a normal use of language.[30]The claimants’ case would thus obviously be significantly stronger if Mr Fancourt were able to contend that the only meaning of “greater number of aircraft” was an increase in aircraft types, but he does not advance such a contention. In that, he is quite right: it would be absurd if s9(6)(b) did not apply where there was an increase in aircraft throughput but no increase in aircraft types. It is right to add that, at least as at present advised, I would be of the view that, even if the claimants could realistically contend that s9(6)(b) applied only where there was an increase in aircraft types, such a construction would not accord with what the provision naturally conveys, in its context. The point can be succinctly made by referring to the fact that in his skeleton argument Mr Fancourt summarised his case as being that the closing words of s9(6)(b) applied where the purpose of the apron alterations would result in “more or other aircraft”. The closing words of s9(6)(b) are synonymous with the expression “more … aircraft” which is used in the skeleton argument to mean an increase in aircraft throughput, whereas the expression “other aircraft”, is used to mean an increase in aircraft types, and is not synonymous with the closing words.[31]Thus, SIAL’s construction accords with the natural meaning the words convey to a normal speaker of English in the context in which the words are found, but the reading which the claimants’ primary case ascribes to the words is one which they are capable of bearing albeit not as a matter of ordinary contextual language. Accordingly, it appears to me that, if satisfied that the construction adopted below would certainly or probably lead to consequences which were capricious or inconsistent with the clear purpose of the 1973 Act, whereas the claimants’ construction would not, it may very well be right to conclude that the claimants are correct. Otherwise, subject to the secondary point raised by the claimants, it would be right to dismiss this appeal.[32]The first problem with the claimants’ construction is that, assuming in their favour that there could be anomalies as a consequence of the natural meaning of the words at issue, such anomalies largely remain even on the claimants’ construction. It is easy to conceive of a case where the operator of an aerodrome, capable of accommodating only a few Boeing 737s solely because of the limited extent of the aprons, carries out apron alterations which have the only relevant result that the aerodrome can accommodate a significantly greater number of Boeing 737s. As here, the overall capacity of the aerodrome (in terms of the aggregate number of movements) may decrease, because the greater number of Boeing 737s may be more than offset by the concomitant reduction in smaller aircraft. In such a case, because the aerodrome already could accommodate Boeing 737s, and the apron alterations would not have resulted in the aerodrome being able to take any new types of aircraft, s9(6)(b) would not apply even on Mr Fancourt’s construction.[33]However, I am not satisfied that the construction based on the natural meaning of the words of s9(6)(b), would produce what one could fairly characterise as anomalous results. I accept that one can envisage, without much difficulty, circumstances where applying s9(6)(b) as interpreted by the President might well produce a result which, at first sight, seems unfair in an individual case, particularly to those with houses near the aerodrome concerned. However, as the point made in the immediately preceding paragraph tends to show, any filter of the sort contained in s9(6)(b), which is intended to provide a clear and simple test in a wide variety of practical circumstances, will almost inevitably have the result of excluding some cases which may, in terms of the possibility of increased nuisance, seem more meritorious candidates for compensation than other cases which are included.[34]As I see it, the thinking behind s9(3) and (6) was along the following lines. First, there was to be no compensation for householders living near aerodromes in respect of nuisance arising from use of the aerodromes in the state in which they were in 1973. As a result, for instance, intensification of such use (either in terms of number of aircraft or owing to changes in types of aircraft) which involved no physical alteration to the aerodrome, would not give rise to compensation (a proposition confirmed in paragraph 13 of the judgment of the ECtHR in Powell & Rayner -v- UK (1990) 12 EHRR 355 at 358). Secondly, the basic capacity, in terms of types and numbers of aircraft which can be accommodated, and even the likely flight paths of aircraft taking off and landing, at any aerodrome is governed by the length, strength, width and location of the runway or runways. Accordingly, any runway alterations will give rise to a claim for compensation in principle, because they would be likely to result in increased nuisance to at least some people living near the airport: hence s9(6)(a).[35]Thirdly, any compensation to be paid in a case under s9(6)(a), must take into account, not merely the increased nuisance immediately resulting from the changes attributable to the s9(6)(a) works, but also “any intensification that may then be reasonably expected from the use of those works” - see s4(2). Fourthly, when assessing that intensification, it seems to me that (as is common ground between Mr Fancourt and Mr Tait) one must exclude the possibility of any intensification which would result from the carrying out of future apron alterations which fall within s9(6)(b), because, if and when carried out, those alterations would themselves found the basis for a fresh claim for compensation under that very provision.[36]While this analysis of the scheme of ss9(3) and 9(6) does not directly bear on how s9(6)(b)is to be interpreted, it does seem to me to demonstrate why the basis for Mr Fancourt’s alleged anomaly does exist. The underlying assumption of s9 is that an aerodrome’s fundamental present capacity is to be determined by reference to its runway or runways. Sections 9(3) and (6) effectively enable one to identify different circumstances which could give rise to intensification in terms of increase of numbers of aircraft and/or increases in types of aircraft (or, indeed, other changes, such as variations in flight path). At one extreme is intensification which is associated with no, or very slight, alterations: they give rise to no compensation. At the same extreme is intensification attributable to alterations which do not fall within s9(6) at all, such as alterations to the terminal facilities, which could have a very substantial effect, but nonetheless do not give rise to compensation either. At the other extreme is intensification due to significant runway alterations; these give an automatic right to claim compensation. Another category, intensification attributable to significant alterations and additions to taxiways and aprons, represents an intermediate case. It seems to me that it is not particularly surprising that such intermediate cases should give rise to a right to a claim for compensation only in certain circumstances, which should ultimately be limited in the way in which the natural reading of s9(6)(b) involves.[37]If a new type of aircraft, which could be accommodated on the present runway without any alterations thereto, is accommodated as a result of apron alterations, it is nonetheless a type of aircraft which the runway could always have accommodated. In such a case, if the runway had been constructed after 1973, any compensation could have been expected to take into account the possibility of the aerodrome being used by such an aircraft (as such a possibility would not have been excluded from the ambit of s4(2) by s9(6)(b) on the assumption that that provision only applies where there is an increase in aircraft throughput).[38]Furthermore, even if there is anything in the anomaly argument, one can overstate the likelihood of any anomaly which could arise from the natural interpretation of s9(6)(b). Mr Fancourt postulated a case of an aerodrome, with a current capacity for 50,000 light aircraft and which has apron alterations carried out, with a result that it can now accommodate 20,000 large commercial aircraft. Despite the fact that there would be a substantial increase in nuisance to the surrounding area, the construction adopted by the President would disentitle anyone from claiming compensation.[39]On the face of it, that is an odd result, but I believe that there are two points to be made about it. First, I would have thought it would be a very rare case where an aerodrome would only be operating with light aircraft if it had a runway which, without substantial works of alteration to it, could accommodate large commercial aircraft. Secondly, as already mentioned, the scheme of the 1973 Act, on the basis of the President’s construction, is that compensation for alterations falling within s9(6)(a) takes into account (albeit only on the basis of foreseeability) possible future use of the altered runway (including its capacity for types of aircraft which might necessitate apron alterations). In the same way, the 1973 Act precludes compensation for the fact that apron alterations result in the aerodrome being able to accommodate additional types of aircraft, where its runway could take those types of aircraft in the first place.[40]Quite apart from this, it seems to me that the construction primarily advanced on behalf of the claimants can itself lead to difficulties. As Mr Fancourt accepts, there could be cases where a claimant could argue that the apron alterations in question had been effected to enable the aerodrome in question to take a number of new types of aircraft that it had not previously been able to accommodate, but where the respondent could say that the aerodrome was no longer accommodating a number of different types of aircraft which it had previously taken. In such a case, one can imagine a number of arguments, the resolution of which would often be rather difficult. How is one to decide what constitutes a particular class of aircraft? Is one required to establish how many actual aircraft there are in each particular class, and if (as I think must be the case) the answer is in the affirmative, how does one do so? Does one take into account the number of classes, or number in each class, at the date that the additions are first contemplated, started, completed, or some other date? To what extent is the test subjective or objective? This last question could arise on the natural construction, but it would raise less acute problems.[41]To summarise, it appears to me that: i) a provision such as s9(6)(b) is inevitably something of a blunt instrument which will produce what may seem to be unfair, or even inconsistent results in some circumstances; ii) such unfairnesses or inconsistencies cannot, in my view, in the context and scheme of s9(3) and (6) read as a whole, be fairly characterised as anomalies; iii) even if any anomalous result were produced by s9(6)(b), it would only be in relatively rare circumstances; iv) in any event, such alleged anomalies would exist under the claimants’ preferred construction; v) the claimants’ preferred construction will, in some circumstances, raise additional and potentially difficult problems.[42]In these circumstances, while acknowledging the attractive way in which Mr Fancourt made his submissions, I would reject the primary basis upon which the decision below is said to be wrong. That, then, brings me to the second argument, which involves concentrating on BAA’s purpose in carrying out the Works.

The second argument: BAA’s aim was to accommodate more large aircraft

[43]If one asks oneself whether the main purpose (in the sense of the primary commercial aim) of BAA in carrying out the Works was to provide facilities “for a greater number of aircraft”, it must, I think, be acknowledged that there is an argument for an affirmative answer in light of the findings of the President in paragraphs 33 and 34 of his decision to which I have referred, namely that:
“The main purpose of the redevelopment, including the alterations, was to produce a modern regional airport with expanding commercial passenger traffic. … [This] expansion of commercial air traffic would lead to a reduction in general aviation …”
(emphasis added)[44]In other words, their argument runs, the primary purpose in the mind of BAA when carrying out, the Works, was to “provi[de] facilities for a greater number of aircraft”, namely commercial passenger aircraft, and the fact that this would result in a more than concomitant reduction in the number of other, smaller, aircraft, using the Airport was a subsidiary intention, or even merely a consequence, of the carrying out of the Works. To put the point another way, s9(6)(b) is said to be satisfied because the sole or primary intention of the relevant person, BAA, in carrying out the Works was to increase the number of aircraft using the Airport, and the facts that the intention concentrated on a certain category of aircraft, and that there would be an incidental and more than compensating reduction in the number of other categories of aircraft using the Airport, are ultimately nothing to the point, given that one is concerned with the main purpose of the person responsible for the works.[45]I have come to the conclusion that this also is an argument which should be rejected. My reason for this involves focusing on the word “purpose” in s9(6)(b). The argument on behalf of the claimants involves attributing a wholly subjective character to the word, which it is capable of bearing, and which, indeed, it frequently bears. However, it is a word which is perfectly capable of having a relatively objective character and, in the present context, I consider that that is its proper attribution. That is particularly so, given that it is agreed that in assessing the “greater number of aircraft”, one is concerned with capacity rather than actual use.[46]In my view, the word “purpose” in the context of s9(6)(b) should, at least normally, be read as meaning the objective anticipated consequence of the subjective intention of the relevant person, who will almost always be the operator of the aerodrome concerned.[47]Such a meaning appears to me to be inherently more likely in light of the language of s9(6)(b), given that the purpose therein described is not attributed to a particular person, but to the “addition or alteration” itself. When one looks at s9(6)(a) and the opening part of s9(6)(b), it appears to me that they reinforce the notion that the “purpose” in paragraph (b) is relatively objective. The other concepts embodied in s9(6) are plainly to be determined objectively, and that, at least in my view, tends to reinforce the likelihood of the remainder, ie the second half of paragraph (b) being determined by reference to objective factors.[48]Looking at the matter more broadly, I consider that it is more consistent with justice, practicality and the scheme of s9(6) generally, to give the word “purpose” in paragraph (b) a relatively objective meaning. It appears to me unlikely that the legislature would have intended that the question whether or not householders affected by the alterations should be entitled to claim compensation would depend purely upon the subjective wishes or intentions of the particular operator of the aerodrome in question. There may be great difficulties in identifying the purely subjective intention of the operator. There could also be much room for disagreement as to how to characterise such a purely subjective intention.[49]It would be capricious if a householder near an aerodrome was deprived of the ability to claim compensation as a result of alterations which would almost inevitably increase the number of aircraft using the aerodrome simply because such an increase was not, as a matter of fact, the main subjective desire of the operator of the aerodrome. Equally, although less likely to occur in practice, it would seem unlikely that the legislature could have intended that the wholly unrealistic or over-optimistic projections of the operator of the aerodrome should result in neighbouring householders being entitled to seek compensation notwithstanding the fact that there would be no real prospect of the alterations resulting in an increase in the number of aircraft using the aerodrome.[50]Far from calling this conclusion into question, the Plymouth City Airport case appears to me to be consistent with it. When considering s9(6)(b), the court referred to “the elementary fact that a purpose has to exist in someone’s mind”, the relevant person in that case being the Ministry of Defence (“the MoD”) and said that “the MoD’s aim … was … to locate in the airport two of its own helicopters” in that particular case (paragraph 20 of the judgment). The court’s ultimate conclusion, however, in paragraph 22 of the judgment, was expressed in relatively objective terms:
“[T]he Secretary of State was fully entitled to conclude … that ‘a hard standing area was necessary for the helicopters to operate from the airport’ and that this was accordingly the purpose of the alterations.”
[51]I have intentionally characterised the word “purpose” in s9(6)(b) as “relatively objective”, because I do not intend to suggest that the meaning of the word in this context should be forced into some sort of conceptual straitjacket. The subjective intention of the operator of the aerodrome concerned may be relevant not only in terms of establishing the subjective aspect of the purpose, but also in terms of assessing the ultimate objective result. After all, in most cases, the operator will, it is to be hoped, be experienced, competent and honest.[52]On the basis of this approach, it seems to me that one comes back, albeit perhaps by a rather indirect route, to the same conclusion as that arrived at by the President on his reading of s9(6)(b). The President took the view, in the passage that I have cited from his decision, that the effect of the Works would lead to “the expansion of commercial air traffic [which] would lead to a reduction in general aviation”. In other words, his conclusion was that, whether one looked at the subjective expectation of BAA when carrying out the Works, or at the likely objectively judged consequence of the Works, there would be a smaller number, rather than “a greater number of aircraft” using the facilities at the Airport.

The European Convention on Human Rights (“the Convention”)

[53]Finally, it is right to mention that Mr Fancourt submits that either of the constructions for which he contends is more consistent with the Convention rights of householders near aerodromes, than is the natural construction. He accepts that Article 1 of the First Protocol to the Convention does not require compensation for owners or occupiers of houses who are suffering nuisance due to increased numbers of aircraft attributable to additions and alterations carried out at a neighbouring aerodrome. However, he contends that the 1973 Act should be interpreted in a way that does not result in compensation being refused in one case where it is granted in another, in circumstances were the consequences of the alterations and additions are identical in each case. It may well be that, in order to get this argument off the ground (to use an unintendedly appropriate metaphor), Mr Fancourt needs to establish unjustifiable discrimination contrary to Article 14; if so, he disclaims any such intention, and rightly so.[54]However, I do not consider that there is anything in the argument based on the Convention. First, as already mentioned, I think it is questionable whether the sort of inconsistent result would ever arise; if it did, it would only be rarely. Secondly, unless it be said that the legislature was not entitled to introduce a simple test for filtering out claims in certain circumstances, any filter such as that contained in s9(6) may, as I have said, produce somewhat unfair or inconsistent results in some circumstances. However, that does not make such a provision in itself unfair, let alone contrary to the Convention.

Conclusion

(b) Conclusion

[55]In these circumstances, I would dismiss this appeal.[56]I agree with Neuberger LJ that this appeal should be dismissed for the reasons he gives. I find his reasons for rejecting the appellants’ two arguments compelling. I should add that whilst I accept that the words “a greater number of aircraft” can on their own (just) be read to include an increase in aircraft types, I cannot see how in their section 9(6)(b) context, they can have any other meaning than that ascribed to them by the President. The statute could have defined the right to compensation for depreciation caused by use of public works to aerodromes more generously or by reference to different criteria, but it does not do so. As Neuberger LJ points out a scheme which gave a right to compensation for an increase in aircraft types would not eliminate anomalies (paras. 32 and 33) and would be uncertain in effect (para. 40).[57]Since seeing and agreeing with Neuberger LJ’s judgment I have read Ward LJ’s strongly expressed dissent. As I understand it he would construe section 9 (6)(b) to include an additional alteration whose purpose was to increase “the provision of passenger facilities for a greater number of aircraft”. I am not sure that I entirely follow how an addition or alteration to a taxi-way or apron on an aerodrome can be characterised as a passenger facility. Surely these are facilities for the aircraft which use the aerodrome, although of course, as in this case, they may indirectly benefit passengers using the airport. On this analysis it seems to me that what Ward LJ is really saying is that one has to construe section 9 (6)(b) to mean “the provision of facilities for a greater number of passenger aircraft”. We are therefore back into the argument about type of aircraft and on this view a particular type of aircraft. For the reasons already given I reject this construction.[58]Now it can be said (and is said strongly by Ward LJ) that the President’s construction of the Act produces a harsh result for these claimants. But that is because the runway at Southampton has always been capable of taking the larger passenger jets and for better or for worse the statute limits eligibility for compensation for other alterations to those made for or mainly for a single purpose which it defines in simple, and I think, clear terms. Even with the fate of the garrison of Sebastia ringing in my ears and eschewing literalism I cannot construe the language Parliament has chosen to use in a way which entitles these claimants to compensation.[59]With regret I find myself in disagreement with my Lords and I shall express my reasons for that dissent quite shortly.[60]I can see that there is some force in an argument that “a greater number of aircraft” may be construed literally to mean more aircraft using the aerodrome after its alteration than had been using it before the alteration. I do not, however, regard that conclusion as “inescapable”: on the contrary, as I shall explain, I do not find the language leads ineluctably to that result. The difficulty I have with my Lords’ construction is the problem with literalism itself, recently so expressively exposed in the speech of Lord Steyn in Sirius International Insurance Company (PUBL) v FAI General Insurance Ltd. & Others [2004] UK HL 54 which seems to me as apposite for statutory interpretation as for contractual construction. I gratefully borrow from paragraph 19 of his speech:- “What is literalism? It will depend on the context. But an example is given in The Works of William Paley (1838 Ed), Vol. III 60. The moral philosophy of Paley influenced thinking on contract in the 19th century. The example is as follows: The tyrant Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them all alive. This is literalism. If possible it should be resisted in the interpretative process.”[61]That is what is happening here. The respondent’s case is no more nor less than this. “We, the airport authority, have hugely increased our commercial passenger service so we have doubled the number of jumbo jets that drown your conversations and shudder the timbers of your houses. You can expect intensified use of the airport to double the number of commercial air traffic movements by 2006, but be consoled, we have restricted the number of Piper Cubs buzzing like gnats overhead and will keep reducing the number of light aircraft so that you never suffer an increased number of ATMs overall. Awfully bad luck your property has depreciated in value without our having any liability to compensate you”.[62]That seems to me to be a sheer affront to the purpose of this legislation. That purpose which for me leaps off the pages of the statute, is fully revealed in the White Paper Development and Compensation – Putting People First. There “The New Approach” explains that:- “5. … The government believes the time has come when all concerned with development must aim to achieve a better balance between provision for the community as a whole and the mitigation of harmful effects on the individual citizen. In recent years this balance in too many cases has been tipped against the interests of the individual. A better deal is now required for those who suffer from desirable community development. The government is determined to provide this better deal. 6. The answer is not to stop community developments that make life more comfortable, convenient and pleasant. To do that would simply deprive many people of the opportunity of a better environment. The answer must be to plan new developments so as to minimise the disturbance and interruption they can cause, and to improve the compensation code to alleviate any remaining distress. 7. Eight principles underlie the government’s proposals: … (iv) Noise, smell and other forms of pollution must be reduced to a minimum at source – if it is practical eliminate it. (v) Where, in spite of these efforts, damage is still done to individual amenities, reasonable compensation must be provided for those who suffer noise and other harmful effects. … 23. … Owners and occupiers of residential property … will be eligible to receive compensation for any significant depreciation in the value of their property where this is caused by such nuisances as noise or smell resulting from the use of the work. Where, for example, a dwelling is depreciated significantly and permanently in value because a noisy new road now runs by or aircraft from a new aerodrome fly overhead the owner can claim for that loss of value. … 25. These new injurious affection provisions will not apply where there is simply an increase in the use of the work. The use of existing facilities up to their full potential capacity must always be expected, including that which may be the consequence of a road or air traffic management scheme. However, in connection with roads and airports there could be works carried out which significantly affect surrounding amenity but which could not in the normal run of things have been foreseen by those choosing to live close by. The new right will therefore apply to the use of significant alteration works as well as to the use of new works.” (iv) Noise, smell and other forms of pollution must be reduced to a minimum at source – if it is practical eliminate it. (v) Where, in spite of these efforts, damage is still done to individual amenities, reasonable compensation must be provided for those who suffer noise and other harmful effects. …[63]If one follows a teleological approach, then the Act serves its intended purpose. Section 1 gives the right to compensation where the value of an interest in land is depreciated by physical factors which include noise and vibration caused by the use of public works which include any aerodrome. Subsection (5) provides that physical factors caused by an aircraft arriving at or departing from an aerodrome shall be treated as caused by the use of the aerodrome whether or not the aircraft is within the boundaries of the aerodrome. Subject to section 9 the relevant date is ordinarily the date on which the aerodrome was first used after completion. Section 9 provides for the case where there are alterations and changes of use where the relevant date is the date when the aerodrome was first used after completion of the alteration. Not all alterations lead to a claim: they must be runway or apron alterations. It is the definition of “runway or apron alterations” which creates the problem in this case. Section 9(6)(b) defines them as “a substantial addition to or alteration of, a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft”.[64]The issue in a case like this is therefore simply to ask was the purpose or main purpose of the airport authority the provision of facilities for a greater number of aircraft?[65]True it is that the judge found that Mr Noakes’s evidence for the airport authority was that:- “It was not a purpose of the alterations to increase aircraft movement. On the contrary the expansion of commercial air traffic would lead to a reduction in general aviation.” But he did find:- “The main purpose of the redevelopment including the alterations, was to produce a modern regional airport with expanding commercial passenger traffic. The focus of this expansion was the new passenger terminal and the aprons associated with the terminal were needed to accommodate the aircraft including Boeing 757s, which would carry the increasing number of passengers.”[66]In summarising that evidence the judge noted that:- “Before entering into the detailed negotiations for the purchase of the airport, BAA prepared a forecast of anticipated airport demand, details of which were sent out in BAA Board Paper 100/89. The forecast predicted the consistent growth of terminal passenger throughput from 590,000 passengers in 1993 to 1 million passengers in 2006; the growth of passenger air transport movements in real terms and as a percentage of total movements; the decline of general aviation movements as a consequence; and an increase in airport charges as a result of the increase in passenger air transport movement. … The overall movements for the airport were expected to decrease to a forecast of 43,000 by 2006, but with an increase in passenger ATMs from 21,000 to 41,000 over the same period. In fact passenger ATMs increased to approximately 28,000 in 2002 … The redevelopment proposals were based on a shift away from general aviation towards commercial passenger aircraft movements, not on providing facilities for more aircraft. … The apron alterations were intended to ensure that a substantially greater number of passenger jets could be accommodated. … The purpose of the redevelopment was to make the airport more viable commercially. There was a need to concentrate on passenger ATMs.”[67]Given the direct evidence that the apron alterations were intended to ensure that a substantially greater number of passenger jets could be accommodated, or, as the judge expressed it in his conclusion, that the main purpose of the redevelopment including the alterations was to produce a modern regional airport with expanding commercial traffic, then I for my part have to conclude that the answer to the question posed above is a resounding “Yes”. To conclude otherwise seems to me to part company with reality given the changed character of the use of the airport. The argument of not increasing the overall numbers is Temures’ argument that no blood will be shed if prisoners are simply buried alive.[68]This purposive construction sits comfortably with the language of s.9(6)(b). It was common ground that there were substantial additions to or alterations of the taxiway or apron and the focus of the enquiry is on the purpose or main purpose of that addition or alteration. I do not understand why the ordinary word “purpose” creates difficulties nor why it is necessary to speculate whether a subjective or objective or relatively objective meaning has to be given to the word. In ordinary parlance it connotes an intention by some person – the airport authority – to achieve a result desired by it. The material purpose is the provision of facilities for a greater number of aircraft and the crucial phrase to interpret is “the provision of facilities”. What kind of facilities are we talking about? It is perfectly plain that the alterations were intended to facilitate an increased number of commercial passenger aircraft movements in the effort to expand the growth of terminal passenger throughput so as to make the airport more viable commercially. The new facilities were intended for large passenger jets and the true comparison is between the number of such passenger jets able to use the facilities of the aerodrome as they were before the alterations and the number of such aircraft it was desired would use the new facilities after the alterations had been completed. The emphasis is on the desired use of the altered facilities of the new aerodrome, not on the use of the aerodrome overall. Thus if one refines the facilities to mean “passenger facilities” then I would not disagree with the President that:- “It seems to me to be inescapable that what this provision requires is a numerical comparison between the number of aircraft for whom [passenger] facilities existed before the alterations and the number of aircraft for whom [passenger] facilities would exist after the alterations”, with the word in parenthesis now inserted by me.[69]Arithmetically the inescapable answer is that the new facilities have provided for an increased number of aircraft using them and the claimants should be entitled to their compensation. I would therefore allow the appeal.