Right to fly

When buying land, it is essential to secure the rights that you need to enjoy it, where required.

Amongst other characteristics, a right (easement) must benefit the land (not just the occupier) and there must be sufficient certainty as to what the right is.

The party granting the easement must still be able to enjoy the land over which the easement is granted and retain control over it: they must also not be required to have to do something to enable the easement to be exercised. This can lead to practical difficulties e.g. a right of way will need to be kept in repair to be useful. Usually additional provisions are added to provide for upkeep to be shared among users.

Traditional easements such as rights of way or to lay services are easy to identify as valuable to the use of land which meet the requirements for a valid easement. Other rights may be necessary to enjoy the land purchased, however, and it is important to ensure that the nature of the easement and the drafting of it secure a right that will be recognised as a legal easement.

Case

In the case of Bockenfield Aerodrome Ltd & anor v Scott Clarehugh [2021], the claimant sought to uphold a right which had been granted to it on purchase of the aerodrome to:

• the unrestricted right to use at a safe height the airspace above the retained land for the passage of aircraft in circuit arriving or leaving the property.
• The claimant sought an order from the High Court (among other claims) that trees on the retained were a nuisance as their height meant that the aircraft could not come into land at a safe height.

Was this right sufficiently clear in its extent and effect and might it be refused as the owner would have to reduce in height of some trees on the retained land (a woodland burial site) to prevent interference with its exercise?

The High Court set out its approach to determining the grant of the right focusing on the meaning of the relevant words in their documentary, factual and commercial context and whether there was interference. The owner of an easement cannot claim that every interference is actionable: only those, including obstruction, which substantially interfere with the exercise of the right is reasonably required by them, as for the time being.

There was a good deal of evidence on safe flying heights in and out of the aerodrome by pilots and experts in air accident investigation. The High Court found that the safe height could be determined and that the trees deprived the pilots of the necessary clearance arriving or leaving the aerodrome.

Counsel for the adjoining owner sought to argue that the effect of the trees was similar to a right of way which has become potholed over time: (subject to what the grant might say) the owner of the right of way would not be obliged to repair the road. In those circumstances, however, the owner of the easement would be entitled to repair the right way. If that were to apply in this case, that would mean allowing the claimant to take the reduction to the height of the trees into their own hands which was unlikely to be attractive to the owners of the burial site.

The High Court rejected the comparison because the airspace has not become of less utility due to the ravages of time, or use, but because the trees had been allowed to infiltrate the space. A more suitable example would be where the adjoining owner plants a hedge along a road, the growth of which causes significant narrowing to the point where it cannot be used as intended. Utility of the right way has not been reduced by a change to the road but by what the owner of the road is doing on their land. The harm is put right not by requiring the owner to do something – repairing the road – but by ceasing the activity which is taking place on the adjacent land.

The High Court ordered the interference with the easement to stop by the removal or reduction in height of trees to allow to the claimant and its visitors to land at an angle which enables them to pass over the adjoining land by 20ft at the boundary between their properties and to do so without having anything permanently on the land which prevents the pilots having at least 20ft of space beneath them.

Conclusion

This case illustrates that it is possible to grant easements that are not in the traditional mould. Care must be taken to ensure that the right being granted is measurable: evidence was able to establish what is a safe height for an aircraft to arrive and leave the aerodrome.

We can also take from this case an interesting dimension on what obligations are imposed on the owner granting an easement. Generally, that owner is not required to take action to enable the easement, once granted, to be exercised such as repairing a road but if their action results in interference then they will have to act. In this case the ‘action’ (perhaps better described as inaction) was to allow the trees to grow too tall. Consideration should be given to maintenance of the right at the time of drafting the grant but it may simply not have been in the contemplation of the parties when the trees were not as tall.

Author: Laura Ford, Professional Support Lawyer (Senior Associate)