Interference with an easement is not always actionable. Beneficiaries of the easement may object to activities, including obstruction, only if they substantially interfere with the exercise of the rights granted by the easement in question.
The litigation in Bockenfield Aerodrome Ltd v Clarehugh [2021] EWHC 848 (Ch) concerned an airfield at Eshott in Northumberland used by microlights and light aircraft, whose take-offs and landings were affected by the height of the trees growing on adjoining land. The operator of the airfield complained that the trees were denying pilots essential visual clues and restricting the length of the runways available for use by them, and that this was a substantial interference with an easement granting the owner of the airfield an “unrestricted right to use at a safe height the airspace… for the passage of aircraft in circuit arriving or leaving the property”.
The easement in question had been granted in a conveyance of the airfield in 1993, when it was surrounded by open farmland. Consequently, there had been nothing to prevent aircraft from taking off or landing at low heights, except for a few farm buildings and peripatetic agricultural machinery on the adjoining land.
However, the adjoining landowners had subsequently created a woodland burial site on their land. They argued that the trees that they had planted were doing what trees do naturally; they were simply growing into the airspace. And this was not something that they could be required to alter because the character of an easement is such that it requires nothing more than sufferance and cannot impose a burden on the owner of the servient land.
The judge accepted that, at their current heights, the trees were substantially interfering with the airfield’s easement. Furthermore, if a servient owner had planted a hedge along a right of way, the growth of which had narrowed the right of way to the point where it could not be used as it ought, rectification of the harm would be achieved only by ceasing the offending activity on the servient land. So it was too in this case. The owners of the woodland had interfered with the easement by growing trees into the airspace and would be required to remove or reduce the height of the trees to enable aircraft to have at least 20 feet of space below them on the boundary between the properties (but not 20 feet of space over the entirety of the adjoining land) for take-off and landing.
The operator of the airfield also claimed that the adjoining landowners had derogated from their grant because the trees disrupted airflow, affecting aircraft stability when passing along the runways themselves. In other words, the trees affected the airfield operator’s use of its own land – as well as its use of the easement.
The judge agreed that the land had been sold as an airfield in circumstances where both vendor and purchaser contemplated that it would continue to be used for the operation of light aircraft which would be taking off and landing over the retained land – and that, in relation to the easement, acting in a way that made landing and take-off more hazardous than need be the case was a way of taking with one hand what had been given by the other. But the judge was not satisfied that the woodland was causing the runways to be substantially less fit for use by aircraft. Therefore, the claim for derogation from grant in relation to the use of the runways failed.
Allyson Colby, property law consultant
