NIGEL RICHARD PIERCE BRUNT AND OTHERS v SOUTHAMPTON INTERNATIONAL AIRPORT LIMITED LCA/225/2001

UPPER TRIBUNAL

LANDS CHAMBER

LCA/225/2001

Case No LCA/225/2001

Between

NIGEL RICHARD PIERCE BRUNT AND OTHERSApplicant

SOUTHAMPTON INTERNATIONAL AIRPORT LIMITEDRespondent

Before

The President

Southern Planning Practice for Claimant

of Twyford for Claimant

Andrew Tait QC (instructed by James Harvey, BAA Legal Department) for Compensating Authority

Venue 46/49 Chancery Lane, London WC2A 1JR

Date 21 January 2004

Hearing 11 December 2003

Catchwords: COMPENSATION – Land Compensation Act 1973 Part I – aerodrome – substantial alterations to aprons – whether purpose or main purpose the provision of facilities for a greater number of aircraft – held that it was not – 1973 Act section 9(6)

[1]The preliminary issue that I have to determine arises on a number of claims for compensation under Part I of the Land Compensation Act 1973 in respect of noise from aircraft using Southampton Airport. The claimants are all house-owners in Twyford, near Winchester. The houses are between 6 and 8 kilometres north-north-east of the northern end of the runway and immediately beneath one of the principal flight paths of aircraft taking off and landing. The claimants say that their houses have been diminished in value by increased noise from aircraft movements arising from alterations made to the airport. Under section 9(3) of the Act a claim can only be made in respect of alterations to an airport where the alterations are runway or apron alterations. The claimants base their case upon apron alterations carried out between 1993 and 1995. Under section 9(6)(b) apron alterations for the purposes of section 9 must be “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.” The issue to be determined is whether the alterations fall within this limitation. There is no dispute that there were substantial additions to, and alterations of, the taxiways and aprons. The dispute between the claimants and the compensating authority, Southampton International Airport Ltd (SIAL), is whether the purpose or main purpose of these additions and alterations was to provide facilities for a greater number of aircraft. The claimants say that it was. The compensating authority deny this. The facts

[2]There is substantial agreement on the facts. The parties agreed a statement of facts. Evidence on behalf of the compensating authority was given by Michael Alan Noakes BSc MICE, an employee of BAA plc, the parent company of SIAL, and there was a witness statement from one of the claimants, Ian Richard McKellan Parker. For SIAL, Mr Andrew Tait QC said that, to the extent that Mr Parker’s evidence consisted of his interpretation of the contents of documentary material it was not accepted, but that there was no need to challenge it in cross-examination as Mr Parker was not an expert in the matters to which his evidence related. There is a dispute on the facts as to the purpose of BAA/SIAL in carrying out the apron alteration. I will deal with this later. There is no dispute on the following facts.

[3]Works to the apron and taxiways at Southampton International Airport were carried out by the compensating authority between 1990 and 1995. The major construction was undertaken in 1993 to 1994 and was completed in or around August 1995. Although it was initially understood by the compensating authority that these works were completed on 19 December 1994 it is now agreed that the date of completion of the works was in or around August 1995. The airport is located adjoining the M27 motorway, approximately ½ mile from Junction 5 of the M27 between Southampton and Eastleigh. The planning authority is Eastleigh Borough Council. 2

[4]The airport has a long history dating back to around 1910, when the land that at present comprises the airport was used for occasional flights. In 1917 the airport site was requisitioned by the War Office for military flying purposes. In the 1920s flying ceased, before resuming in 1932, when it became the Southampton Municipal Airport. In 1936 Vickers works at the airport were used to assemble the Spitfire. In 1939 the airport was requisitioned for military purposes again. In 1945 a regular Channel Islands service marked the return of the airport to a municipal airport. In 1960 the Ministry of Civil Aviation considered the feasibility of constructing a concrete runway, but the scheme was rejected and it was announced that the flying facilities would be withdrawn. Mr J N Somers secured the future of the airport when he purchased it from what was then the Southampton City Corporation. Mr Somers carried out a number of improvements, most notably the construction of a 1,732 metre runway, which is still used today. In the first year of operation following the construction of the runway, 1967, a quarter of a million passengers passed through the airport.

[5]In 1984 Airports UK Ltd, a subsidiary of the then British Airports Authority Limited, was appointed to manage the operational activities of the airport. Airports UK Ltd increased the airport’s market share to just under half a million passengers per annum in 1988, and made improvements to the facilities. In 1988 Mr Somers sold his entire interest in the airport site to a consortium of developers led by Mr Peter de Savary. The developers prepared a number of planning applications for the complete redevelopment of the airport site together with the creation of two business parks within the existing airport perimeter. It was proposed that one business park would be developed within the northern portion of the original airport site (the Northern Business Park) and the second would be developed within the southern portion of the original airport site (the Southern Business Park).

[6]An outline planning application for a new passenger terminal with ancillary shops, hotel, heritage centre, improved rail station, associated parking areas and other related facilities was submitted to the planning authority in July 1989. A duplicate outline planning application was submitted in March 1990. Following the submission of their outline planning applications, the developers sold their interest to BAA, who completed the purchase of the airport on 17 July 1990. The second application was the subject of various amendments through 1991 and 1992.

[7]A Statement of Development Criteria (dated April 1992) was prepared and submitted to accompany the various outstanding planning applications in June 1992. A Flying Controls Agreement (FCA) and a section 106 agreement were entered into with Eastleigh Borough Council on 18 December 1992 as part of the planning process and as a consequence of the grant of planning consent on the same day for the construction of the new airport facilities. Further planning agreements were entered into in relation to the development of the Northern and Southern Business Parks. Outline planning consent for the redevelopment of the airport site was granted on 18 December 1992. A Master Plan Design Statement was prepared and submitted to Eastleigh in April 1993.

[8]The FCA imposed detailed restrictions including prohibitions on extensions/ realignments of the runway, the construction of an additional runway or runways and the use of the airport by certain noisy aircraft; night time flying restrictions; a requirement to reduce 3 training movements, with an ultimate cap upon the number of training movements; restrictions on helicopter movements, and the ground running and testing of aircraft engines; and requirements for aircraft movement monitoring and the operation of noise preferential routeing. In addition an air pollution study was required to be carried out. The FCA provided for a procedure for dealing with air pollution monitoring if the aircraft movements reached 180,000 per annum or if throughput exceeded 1,300,000 passengers per annum. The section 106 agreement imposed additional obligations including restrictions on building on the airfield; requirements in connection with the construction and operation of the new terminal building and the demolition of the old terminal building; restrictions upon terminal building retail content; other general obligations regarding the use of the redeveloped site; and the maintenance of landscaping.

[9]Documentary material appended to the witness statements of Mr Noakes and Mr Parker contained statistics of the past numbers of aircraft movements and passengers and the areas of the taxiways, aprons and hangars before and after the redevelopment. Extracts from reports to the board of BAA contained estimates of future levels of aircraft movements and passengers. The following appear to me to be of particular relevance to the disparity between the parties.

[10]The area of the airport prior to redevelopment was approximately 140 hectares. The airport (which then extended over the Northern and Southern Business Parks) comprised (in square metres): Commercial Parking Area - 16,619 GA Parking/Hangar Aprons - 4,960 Grass Parking - 7,233 Taxiway s - 23,076 Hangarage - 11,874

[11]Following redevelopment and the construction of the Northern and Southern Business Parks the area of the airport was reduced to approximately 108 hectares. It comprised (in square metres): Commercial Parking Area - 29,236 GA Parking/Hangar Aprons - 10,491 Grass Parking - nil Taxiway s - 45,592 Hangarage - 5,988 4

[12]Since 1987 total aircraft movements have generally fluctuated in the range 50,000 to 60,000 per annum, showing no overall trend of increase or decrease. The number of passenger ATMs has risen steadily over the same period from about 18,000 in 1987 to about 21,000 in 1993 and about 28,000 in each of the years 2000 to 2002. It appears that 2003 may in due course show a substantial increase. Non-passenger ATMs for which SIAL levies airport charges, including in particular general aviation and air taxis, fell from 27,000 in 1993 to 19,000 in 2002. The number of training movements fell from 14,718 in 1993 to 10,066 in 2001. Total helicopter movements fell from over 900 in 1993 and 1994 to 420 in 2001. Non- chapter 3 aircraft (noisy aircraft), which accounted for 159 aircraft movements in 1993, have been effectively phased out.

[13]A paper presented to the BAA board before the negotiations that resulted in the purchase of the airport (BAA Board Paper 100/89) contained what it termed “Base Case Assumptions” on the growth of passenger numbers, from 510,000 ppa in 1991 to 1,000,000 ppa in 2006. The ATMs associated with these numbers were shown to increase from 21,000 in 1991 to 41,000 in 2006. Numbers for what were termed “Other Movements” were shown to fall from 51,000 in 1991 to 43,000 in 2006. (It was a matter of dispute between the parties whether, as Mr Noakes asserted, “Other Movements” in fact meant total movements. I will deal with this matter later.) Forecasts prepared after the acquisition, and shown in BAA Board Paper 10/92, showed in 2005/6 as “Most Likely” 1,100,000 ppa and 34,500 ATMs and as “Planning” 1,440,000 ppa and 43,500 ATMs. The statutory provisions

[14]Section 1 of the 1973 Act provides for compensation where the value of an interest in land is depreciated by physical factors caused by the use of public works. Under subsection (2) physical factors include noise; and under subsection (3) an aerodrome constitutes public works. Subsection (5) provides that physical factors caused by an aircraft arriving at or departing from an aerodrome are to be treated as caused by the use of the aerodrome whether or not the aircraft is within the boundaries of the aerodrome. Subsection (9) defines “the relevant date” in relation to a claim as the date when the public works were first used after completion. Sections 3(2) and 4(2) limit claims in general to the effect of the use on the first anniversary of the relevant date. Section 9 applies to alterations to public works, and subsection (2) provides that, where a claim relates to depreciation caused by such alterations, the relevant date is the date when the public works were first used after completion of the alterations. Subsections (3) and (6) then provide:

“(3) Subsection (2) above shall not by virtue of any alterations to an aerodrome apply to a claim in respect of physical factors caused by aircraft unless the alterations are runway or apron alterations. (6) In this section ‘runway or apron alterations’ means – (a) the construction of a new runway, the major realignment of an existing runway or the extension or strengthening of an existing runway; or 5 (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.”

[15]The effect of these provisions is to limit claims in respect of established airports to depreciation caused by alterations consisting of runway or apron alterations as defined. The issue between the parties in the present case, as I have said, is whether the apron alterations that were carried out had as their purpose or main purpose the provision of facilities for a greater number of aircraft. Case for the claimants

[16]For the claimants Mr T M Fancourt QC said that the definition in section 9(6)(b) contained four elements. The first and second were that there must be an addition to and/or alteration of the apron and that such addition or alteration must be substantial. There was no dispute on these two elements. SIAL accepted that they were satisfied. The third and fourth were that the addition or alteration must have had as a purpose the provision of facilities for a greater number of aircraft and that this purpose must have been at least the main purpose of the provision. As to these, the test was not whether, but for the alterations, additional aircraft that did in fact use the airport would not have done so. That test was too onerous, and the right test was one of intention at the time immediately before the alterations were made. He relied on the Court of Appeal decision in R v (Plymouth City Airport Ltd) v Secretary of State for Transport, Environment and the Regions

[2001] EWCA Civ 144

. The question was the purpose, or main purpose, for which the alterations were made. This was a matter of evidence.

[17]There was, said Mr Fancourt, no satisfactory evidence that BAA or SIAL intended the airport to be used by fewer aircraft overall. Although their ultimate objective was to transform the airport into a commercial international airport, on their own figures this was not going to happen for some time. It therefore would not have made commercial sense for them to have planned for a reduction in general aviation. The 1989 Board paper should be taken at face value. “Other Movements” meant what it said, and these, added to the passenger APTs, showed that BAA were planning for an increase and not a reduction in aircraft movements.

[18]But in any event, said Mr Fancourt, the words “a greater number of aircraft” in the context of section 9(6)(b) – “the provision of facilities for a greater number of aircraft” – did not imply a requirement to count up the number of aircraft using the airport before the provision of the new facilities and compare that with the number for which the facilities were intended to provide. A test of a net increase in numbers could produce absurd results. On that basis an aerodrome with a large runway handling 50,000 light aircraft flights a year could be rebuilt to accommodate the same number of commercial jet movements without any compensation being payable under the Act. The test was whether more, or different, aircraft – those that did not previously use the airport – were to be provided for. 6 Case for the compensating authority

[19]Mr Noakes said that he joined BAA in 1986 and worked both in the engineering and the planning departments of BAA for five years. In 1991 he transferred to Airports UK Ltd, a wholly owned subsidiary of BAA, as Head of Planning and Development. In 1994 he became General Manager of Projects, responsible for major developments at BAA airports. Later he became General Manager Rail Projects, with responsibility for group rail projects, development and strategy. He said that he had attended the Board meeting in 1992 at which the decision was taken to proceed with the investment for the redevelopment.

[20]Mr Noakes said that he first became involved with Southampton International Airport, then known as Eastleigh Airport, when in 1990 he was in the BAA Planning Department and he was asked to look at a plan for the airport with significantly reduced land area. He later became involved with the purchase of the airport (completion was on 17 July 1990) before being made responsible for its redevelopment. His direct involvement with the airport ended when the new terminal was opened on 19 December 1994. Given his direct involvement with the airport redevelopment, he said that he was able to explain the purpose of the works that were carried out at the airport, including the works to the aprons.

[21]Mr Noakes said that, although some early work commenced in the summer of 1990, the major construction continued throughout 1993-94. The redevelopment work was largely completed by the date of the opening. However, he said, it was important to note that the airport continued to operate throughout the construction period. Although the works to the apron were largely completed by the date of the opening, they were only finally completed in about August 1995.

[22]Before entering into the detailed negotiations for the purchase of the airport, BAA prepared a forecast of anticipated airport demand, details of which were set 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 movements. The reference in the Board paper to ATMs was, said Mr Noakes, to passenger ATMs. The reference to “Other Movements” was to total movements including passenger ATMs, and the forecast figure for 1993 was similar to the actual figure for 1993 (56,808). 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 and the overall number of movements had not materially changed since 1993, although it had fluctuated over that period.

[23]BAA was required to prepare a master development plan design statement in support of the planning application for the development of the airport. The MDP was approved by the 7 council on 11 August 1993. Based on the forecast demand, the MDP required up to 14 aircraft stands, two of which were to be capable of accommodating Boeing 757 aircraft and the remainder were to accommodate up to BA146 or British Aerospace ATP size aircraft. In the event, only 11 aircraft stands were constructed at the airport. In addition to the passenger terminal apron a number of replacement facilities needed to be accommodated. These included short-term car parking, long-term car parking, a control tower, fire station, motor transport facilities, two general aviation hangars, cargo building, a new access road to the terminal and car parks, and a fuel depot. Replacement hangarage was to be provided. The original airport site had provided 11,874 sq m of hangar space. Post redevelopment the airport site provided 5,988 sq m of hangar space. One of the two replacement hangars, approximately half of the available hangarage, was required as a consequence of a pre- existing contractual obligation owed to Mr Somers, and not as a consequence of BAA’s requirements for the redevelopment of the airport site.

[24]The potential layout of the redeveloped airport facilities was constrained by a number of factors, in particular the railway and station to the west of the airport, the proximity of the runway on the eastern side, the Northern Business Park. and BR maintenance works to the north of the runway, and the M27 and Southern Business Park to the south of the runway. There were other constraints also. There was the need to have the fire station close to the terminal, a requirement for the terminal building to be as close the railway station as possible, and height limitations arising from CAA requirements on the licensing of aerodromes. There was the particular requirement to accommodate up to 14 aircraft stands capable of accommodating Boeing 757 weight aircraft. The decision was taken that the apron should be laid out for nose-in stands rather than the previous self-manoeuvring stands because of the range of aircraft types and cost. Nose-in stands were also considered to be safer for passenger routes to and from the aircraft and the terminal, as they could be segregated from moving aircraft. In addition, there was the need to maintain aircraft operations during the process of construction. All those constraints determined the layout of the redeveloped site, including the shape and design of the new apron areas. Mr Noakes said that until recently he had been under the impression that the apron areas were reduced by the redevelopment and indeed that had been pleaded in the compensating authority’s defence. More recent measurement, however, had shown this not to be the case.

[25]The overriding limitation on runway capacity at the airport, said Mr Noakes, was and remained the entry and exit points to the taxiways to the runway. While runway capacity could have been increased by taxiway alterations, there was little or no land on which to accommodate the increased numbers of aircraft which that increase in capacity would bring. Thus the redevelopment of the airport did not incorporate any alteration of the position of the taxiways at their conjunction with the runway. Runway capacity therefore remained exactly as it was prior to redevelopment.

[26]The redevelopment proposals were based on a shift away from general aviation towards commercial passenger aircraft movements, not on providing facilities for more aircraft. That shift towards commercial passenger aircraft movements had to be accomplished within identical runway capacity constraints but with far more restrictive operational land constraints. The original airport could have accommodated more aircraft on the ground at any time than the redeveloped airport. There were a greater number of aircraft movements 8 prior to redevelopment than at any time after redevelopment. A greater number of aircraft were accommodated on the apron areas prior to redevelopment than at any time subsequently. Mr Noakes said that from his own knowledge of the redevelopment works he could say that it was never proposed that the works should be undertaken so as to increase the number of aircraft capable of being accommodated at the airport.

[27]In cross-examination Mr Noakes agreed that it was BAA’s intention when buying the airport in 1990 to expand all streams of income, but only so far as this was possible within the constraints. While it was correct that BAA had in mind to use other sources of income while passenger ATMs built up, it was always the case that the total number of aircraft movements was expected to fall. Mr Noakes said he did not know who had proposed the figure of 180,000 aircraft movements that was contained in the Flying Controls Agreement. The apron alterations were intended to ensure that a substantially greater number of passenger jets could be accommodated. However, just because the apron area was larger did not mean that it was capable of accommodating more aircraft in total. There were considerations such as wingspan and the arrangement of the stands that bore upon the capacity. The way the aprons were laid out was completely different from before. The purpose of the redevelopment was to make the airport more viable commercially. There was a need to concentrate on passenger ATMs.

[28]Mr Tait said that under section 9(6)(b) it was agreed that the changes to the taxiways and aprons were substantial. However, it was necessary to be satisfied that the purpose or main purpose of the alterations was the provision of facilities for a greater number of aircraft. It was that purpose or main purpose that was in issue. Mr Tait referred to the Plymouth City Airport case, in which the Court of Appeal had considered the issue of purpose or main purpose under section 9(6)(b) in the context of a certificate having conclusive effect under section 15(2) issued by the Secretary of State in respect of works constructed by the Ministry of Defence. Although the facts were markedly different from those in the present case, since there was no dispute in that case that the intention was to increase the capacity of the airport by allowing helicopters to use the airport in addition to the aircraft using the runway, the case was authority for the proposition that the purpose referred to in section 9(6)(b) has to exist in someone’s mind. In the present case that person was SIAL. The purpose to be ascertained, in the mind of SIAL, was whether a greater number of aircraft was to be provided for. That was a quantitative measure and did not relate to types or size of aircraft. It was to be noted, said Mr Tait, that section 9(6)(a) related to runway construction or alteration, without further demonstration of purpose. That was consistent with runway construction or alteration being generally likely to alter the overall capacity of the airport, whereas apron or taxiway alter- actions might be unrelated to changes in capacity. The best evidence of the purpose or main purpose of SIAL was the oral evidence of Mr Noakes, who had been involved as early as 1989. He was in the very best position to give the evidence of SIAL’s purpose. His evidence was that the purpose was not to provide for a greater increase in the number of aircraft capable of being accommodated at the airport. That evidence was born out by the documentary evidence that was appended to the witness statements of Mr Noakes and Mr Parker. 9 Conclusions: the law

[29]There is no dispute that the alterations to the taxiways and aprons carried out by BAA/SIAL as part of their airport redevelopment were substantial. Thus the only question is whether the purpose or main purpose of the alterations was “the provision of facilities for a greater number of aircraft” within the meaning of section 9(6)(b). It seems to me to be inescapable that what this provision requires is 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 purpose of this comparison is the airport as a whole (see the Plymouth City Airport case, para 9, where it is recorded that at the conclusion of argument it was common ground between the parties that the unit was the aerodrome). It must, in my view be the airport as a whole, since it is “alterations to an aerodrome” to which section 9(3) refers and which are then defined in subsection (6) and there could be no rationale for taking some other unit. The facilities may, in my view, either be those providing for a greater number of aircraft movements or those providing for a greater number of aircraft to be accommodated on the ground within the airport. Finally, the paragraph, referring as it does simply to “aircraft”, affords no justification for distinguishing between particular types of aircraft. If overall there would not be facilities for a greater number of aircraft, therefore, the fact that there would be facilities for a greater number of a particular type of aircraft would be of no significance.

[30]It follows from this analysis that I reject Mr Fancourt’s submission that the test under paragraph (b) is not a numerical comparison but whether provision was to be made for aircraft that did not previously use the airport. Conclusions: the facts

[31]In its points of defence at para 12 the compensating authority averred that “the effect of the works has been to reduce the overall surface area of the apron from 45,727 square metres to 41,274 square metres.” That was incorrect. Before the alterations the apron areas for commercial aircraft (16,619 sq m) and for GA parking and hangars (4,960 sq m) totalled 21,579 sq m. In addition the area of grass parking was 7,233 sq m, bringing the overall total for aircraft parking to 28,812 sq m. The redevelopment alterations produced an increase in commercial aircraft parking to 29,236 sq m and in the GA parking/hangar aprons to 10,491 sq m, a total of 39,727 sq m. The correct figures, which would always have been ascertainable by SIAL, were only established following investigation and pressure on the part of the claimants.

[32]Although the apron areas have increased substantially, I do not find on the evidence before me that this increase in area has provided facilities for the accommodation at the 10 airport of a greater number of aircraft. I accept the evidence of Mr Noakes on this, and I also accept his evidence that it was not the purpose to provide parking facilities for a greater number of aircraft.

[33]It was averred in para 6 of the points of defence that the purpose of the alteration of the apron was to rationalise the residual space at the aerodrome. In the light of Mr Noakes’s evidence I find that such rationalisation was not the purpose or the main purpose of the alteration. 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 associated with the terminal were needed to accommodate the aircraft, including Boeing 757s, which would carry the increasing numbers of passengers. The loss of the Southern Business Park land may well have dictated where the new terminal and its aprons were to be located, but it did not create the requirement for them. That arose from BAA’s expansion plans.

[34]Mr Noakes’s evidence was 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. The claimants relied on two pieces of documentary evidence which, they suggested, contradicted Mr Noakes’s assertion. The first was the table in report BAA/100/89 which showed “Other Movements” as 51,000 in 1991, rising to 58,000 in 1996 before falling to 45,000 in 2001. When the figures for ATMs (sc passenger ATMs) of 21,000, 30,000 and 39,000 in those years were added, the totals became 82,000, 88,000 and 84,000. Since total movements had only exceeded 60,000 in two previous years, the highest being 66,000 in 1983, this was said to show that BAA were planning for a substantial increase in the number of aircraft movements. I cannot accept that this is what BAA had in mind, and it is in my view clear that, as Mr Noakes said, “Other Movements” was an error for “Total Movements” and that the BAA board would have recognised this. The total movements in the year before the report, 1988, had been 53,000 and it would seem to me to be inconceivable that BAA would have expected this to have grown to 82,000 by 1991, at the very time when the redevelopment of the airport would be in progress or about to begin. Nor is there any suggestion that BAA were envisaging a huge increase in general aviation. On the contrary, their future plans were concentrating on the expansion of commercial passenger traffic. I find that the table in report BAA/100/89, when properly understood, bears out Mr Noakes’s evidence that BAA were not planning for an increase in total aircraft movements.

[35]The second document relied on by the claimants is the Flying Controls Agreement that contained a procedure for dealing with pollution monitoring if aircraft movements reached 180,000 per annum. I attach no significance to this figure in the context of BAA’s plans. There is no explanation for it, and it is so far in excess of any of their forecast figures that it clearly is no indication of future levels of traffic.

[36]Other indications support Mr Noakes’s evidence. The report of 8 March 1990 of the Director of Technical and Development Services to Eastleigh Borough Council on the airport planning application noted in para 12 that it was Government policy to support the growth of regional airports. It accepted that the number of passengers would increase and 11 acknowledged that the airport had potential for an increased number of business flights. It went on:

“The proposals are now to eliminate all training and recreational flights over a limited period.”

[37]In the redevelopment the amount of hangar space was halved, and half of the amount that was constructed was provided in fulfilment of BAA’s contractual obligation to Mr Somers. The relatively small amount of hangarage constructed is consistent with Mr Noakes’s evidence that the expectation was that general aviation activity at the airport would reduce.

[38]My conclusion, therefore, is that it was not a purpose of the apron alterations to make provision for a greater number of aircraft. Nor is there any evidence to suggest that the increase in the area of the taxiways did, or was intended to, provide for a greater number of aircraft. The claimants therefore can have no entitlement to compensation under Part I of the 1973 Act. The determination of this preliminary issue thus disposes of the claims, which are accordingly dismissed.

[39]The parties are now invited to make submissions on costs and a letter on this accompanies this decision. This decision will become final when, but not until, the question of costs has been determined. Dated: 19 December 2003 George Bartlett QC, President 12 Addendum on Costs

[40]I have received submissions on costs. The compensating authority ask for their costs on the basis that they have been successful and that costs should follow the event in the normal way. The claimants say that there should be an award of costs in their favour or alternatively that the compensating authority should be deprived of costs that it would otherwise recover, and they rely on the following matters.

[41]Firstly, the claimants say that BAA misled them as to the date on which alterations were first used, which led to costs being incurred in discussing and disputing a preliminary issue on limitation, which the authority later abandoned. Then they say that BAA misinformed them about the overall surface area of the apron by saying that it had been reduced, whereas it had in fact been increased, and the correct information was only given in January 2003. They say also that BAA maintained up to and including the hearing that the purpose of the apron alterations was to rationalise space at the aerodrome, whereas as could be seen from the decision, this was untrue. The claimants also said that BAA had failed to negotiate for the purpose of resolving areas of dispute. Finally they said that account should be taken of the fact that the decision of the Tribunal has created an important precedent for BAA, as the dominant airport authority in the country, on a point of law on which there was no previous authority and on which there was a legitimate issue.

[42]The compensating authority have been successful on the preliminary issue and the claims have been dismissed, and they should accordingly have their costs unless there are good reasons why some other order should be made. There are two features of the conduct of the compensating authority that could possibly suggest that some other order may be appropriate. The first is that BAA had advised claimants that the date on which the works were first used after completion was 19 December 1994, the day on which the new terminal was opened, so that under the provisions of the 1973 Act no claim could be made after 19 December 2001. In fact the works were only completed in August 1995, so that claims could still be made up to August 2002. The second feature is that BAA told claimants (and pleaded in their points of defence) that the effect of the works was to reduce the overall area of the apron with the consequence that section 9 did not apply. In fact the apron area was substantially increased. Both these were factual matters, clearly ascertainable by BAA from their records, but in respect of which the claimants were dependent on BAA for the correct information.

[43]It is of the greatest importance that an authority faced with potential claims under Part I of the 1973 Act should take care to supply the correct information on facts which may be crucial to the question of whether claims for compensation can be pursued and which are in the particular knowledge of the authority. If they provide wrong information individual houseowners may be deterred from initiating and pursuing what may be valid claims. In the event it does not appear to me that the claimants were put to significant extra cost as a result of this misinformation, although clearly some time may have spent in seeking to establish the true facts. They were not deterred from making and pursuing their claims.

[44]The authority sought to have two of the references (LCA/25/2002, Mr and Mrs Owen, and LCA/26/2002, Mr and Mrs Timms) dismissed on the basis that they were statute-barred. 13 Each of these references was made on 5 February 2002. On the application of the authority I ordered that the question of whether they were statute-barred should be determined as a preliminary issue. On 17 January 2003 the claimants wrote to the Tribunal saying that, since their references were out of time, they were withdrawing them. BAA then on 26 February wrote the claimants to say that, contrary to the previously understood position, the aprons were not completed until August 2003, and, in the circumstances, therefore, they would waive the limitation period if further references were made. They also pointed out that the references of 5 February 2002 were defective because the claimants had not previously made a claim to the authority, but they said that they would waive that point also. The claimants respectively made further references on 20 and 24 March 2003.

[45]Although BAA are to be criticised for failing to identify correctly the date on which the works were first used after completion and for wrongly taking the limitation point in consequence, the fact is that, having discovered the error, they evidently took steps to put it right, so that in neither case were the claimants prejudiced. It does not seem to me that it would be appropriate to deprive the authority of any of their costs on this account. Nor do I think that the authority’s erroneous assertion about the area of the aprons, regrettable though this was, amounted in the circumstances to conduct of such seriousness that ought to be marked in costs. I therefore order that the claimants pay the compensating authority’s costs of each of the references, such costs if not agreed to be the subject of a detailed assessment by the Registrar. Dated: 21 January 2004 George Bartlett QC, President 14