Sito giuridico ambientale
Corte Europea dei Diritti dell’Uomo
sentenza del 02/10/2001 sul ricorso n° 36022/97:
(con
commento dell’avvocato Andrea Anfuso Alberghina)
Aeroporto
di Heatrhow: Otto cittadini inglesi si prendono la loro
rivincita. Con la sentenza del 02/10/2001 sul ricorso n° 36022/97 presentato da
otto cittadini inglesi contro il Governo della Regina che lamentavano disturbi
al sonno e alla salute, la Corte Europea dei Diritti dell’Uomo condanna il
Governo Inglese in quanto l’aumento del livello del rumore nella notte dovuto all’eliminazione
dei vincoli sui voli notturni fissati nel 1993, giustificato da un prevalente
interesse economico, in mancanza di un adeguato, serio e dimostrabile
bilanciamento tra interesse economico e tutela della vita privata e familiare,
(e della salute), costituisce una violazione dell’art. 8 della Convenzione.
94. The Court considers that it
is not possible to make a sensible comparison between the situation of the
present applicants and that of the applicants in the previous cases referred to
by the Government because, first, the present applicants complain
specifically about night noise, whereas the earlier applicants
complained generally about aircraft noise and, secondly, the present
applicants complain largely about the increase in night noise which they say
has occurred since the Government altered the restrictions on night noise in
1993, whereas the previous applications concerned noise levels prior to
1993. The Court concludes, therefore, that the outcome of previous applications
is not relevant to the present case
Instead, the applicants’ complaints
fall to be analysed in terms of a positive duty on the State to take reasonable
and appropriate measures to secure the applicants’ rights under Article 8 § 1
of the Convention (see the Powell and Rayner v. the United Kingdom
judgment of 21 February 1990, Series A no. 172, § 41, and the Guerra v. Italy
judgment of 19 February 1998, Reports 1998-I, § 58)
96. Whatever analytical approach
is adopted – the positive duty or an interference – the applicable principles
regarding justification under Article 8 § 2 are broadly similar (the
aforementioned Powell and Rayner v. the United Kingdom judgment loc. cit.). In
both contexts, regard must be had to the fair balance that has to be struck
between the competing interests of the individual and of the community as a
whole. In both contexts the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure compliance with the
Convention (see, for example, the Rees v. the United Kingdom judgment
of 17 October 1986, Series A no. 106, § 37, as concerns Article 8 §
1, and the Leander v. Sweden judgment of 26 March 1987, Series A no. 116,
§ 59, as concerns Article 8 § 2). Furthermore, even in relation to the
positive obligations flowing from Article 8 § 1, in striking the required
balance the aims mentioned in Article 8 § 2 may be of a certain relevance
(see the Rees v. the United Kingdom judgment previously cited, loc. cit.; see also
the Lopez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p.
54, § 51).
97. The Court would,
however, underline that in striking the required balance, States must have
regard to the whole range of material considerations. Further, in the
particularly sensitive field of environmental protection, mere reference
to the economic well-being of the country is not sufficient to outweigh the
rights of others. The Court recalls that in the above-mentioned Lopez
Ostra v. Spain case, and notwithstanding the undoubted economic interest for
the national economy of the tanneries concerned, the Court looked in
considerable detail at “whether the national authorities took the measures
necessary for protecting the applicant’s right to respect for her home and for
her private and family life ...” (judgment of 9 December 1994, p. 55, §
55). It considers that States are required to minimise, as far as
possible, the interference with these rights, by trying to find alternative
solutions and by generally seeking to achieve their aims in the least onerous
way as regards human rights. In order to do that, a proper and complete
investigation and study with the aim of finding the best possible solution
which will, in reality, strike the right balance should precede the relevant
project.
102. The Court concludes
from the above that whilst it is, at the very least, likely that night flights
contribute to a certain extent to the national economy as a whole, the
importance of that contribution has never been assessed critically, whether by
the Government directly or by independent research on their behalf
103. As to the impact of the
increased night flights on the applicants, the Court notes from the documents
submitted that only limited research had been carried out into the nature of
sleep disturbance and prevention when the 1993 Scheme was put in place. In
particular, the 1992 sleep study, which was prepared as part of the internal
Department of Transport review of the restrictions on night flights, was
limited to sleep disturbance, and made no mention of the problem of sleep
prevention – that is, the difficulties encountered by those who have been woken
in falling asleep again. Further research is now under way, and while the
conclusions may be valuable for future Schemes, the results will be too late
to have any impact on the increase in night noise caused by the 1993 Scheme
104. In determining the
adequacy of the measures to protect the applicants’ Article 8 rights, the Court
must also have regard to the specific action which was taken to mitigate night
noise nuisance as part of the 1993 Scheme, and to other action which was likely
to alleviate the situation.
106. However, the Court
does not accept that these modest steps at improving the night noise climate
are capable of constituting “the measures necessary” to protect the applicants’
position. In particular, in the absence of any serious attempt to
evaluate the extent or impact of the interferences with the applicants’ sleep
patterns, and generally in the absence of a prior specific and complete study
with the aim of finding the least onerous solution as regards human rights, it
is not possible to agree that in weighing the interferences against the
economic interest of the country – which itself had not been quantified – the
Government struck the right balance in setting up the 1993 Scheme
107. Having regard to the
foregoing, and despite the margin of appreciation left to the respondent State,
the Court considers that in implementing the 1993 scheme the State failed to
strike a fair balance between the United Kingdom’s economic well-being and the
applicants’ effective enjoyment of their right to respect for their homes and
their private and family lives.
There has accordingly been a
violation of Article 8.
L’art.
della Convenzione Europea dei Diritti dell’Uomo prevede: “1- Ogni persona ha
diritto al rispetto della sua vita familiare, del suo domicilio e della sua
corrispondenza. 2- Non può esservi ingerenza di autorità pubblica
nell’esercizio di tale diritto a meno che tale ingerenza si prevista dalla
legge e costituisca una misura che, in una società democratica, è necessaria
alla sicurezza nazionale, alla pubblica sicurezza, al benessere economico del
paese, alla difesa dell’ordine e alla prevenzione dei reati, alla protezione
della salute o della morale, o alla protezione dei diritti e delle libertà
altrui.”
Il
fatto. Otto cittadini britannici che abitavano con le
loro famiglie in prossimità dell’aeroporto di Heatrhow accusavano successivamente
al 1993 un incremento notevole del rumore durante la notte che provocava
disturbi al loro sonno. Infatti erano spesso svegliati nel cuore della notte e
molto spesso non riuscivano a riaddormentarsi. Questo provocava mal di testa,
spossatezza, perdita di concentrazione e, nei casi più gravi, depressione. E’
evidente che la perdita del sonno si ripercuoteva inevitabilmente anche nella
vita di relazione. Molti risolsero il problema molti anni dopo abbandonando la
loro casa.
L’aeroporto
di Heatrhow è il più grande al mondo e copre oltre 180 destinazioni introno al
globo. La regolamentazione sui voli notturni fu introdotta nel 1962,
successivamente modificata nel 1988, 1993 e 1998. In base alle ricerche
effettuate nel 1987, sulla base di analisi che coprivano il periodo 1978/1987,
si ritenne che era possibile, senza procurare danni al sonno delle popolazioni
che abitavano intorno all’aeroporto, un aumento del 25% sui voli notturni. Dal
1988 al 1993 i voli notturni erano regolati soltanto nel senso che erano
fissati i limiti degli atterraggi e decolli, escluse le emergenze e i fattori
non preventivabili (dirottamenti da altri scali). Nel Gennaio del 1993 il
Governo pubblicò una proposta che prevedeva una nuova regolamentazione per i
tre principali aeroporti di Londra. Tenendo in considerazione la domanda di
voli (atterraggi e decolli) notturni avanzate dagli operatori si riteneva che
una loro restrizione avrebbe danneggiato l’economia Britannica, provocando la
scelta di altri scali. In ogni caso, si riteneva, facendo riferimento “allo
studio sul sonno” pubblicato nel 1992 su incarico del Dipartimento dei
Trasporti, che un aumento dei voli notturni non avrebbe provocato seri danni al
sonno dei cittadini che vivevano intorno agli aeroporti interessati, data la
non rilevanza delle complicazioni al sonno rilevato dal sopra menzionato
studio. Si decise, per tanto, di cambiare il precedente sistema, non più
fissare il numero massimo di atterraggi e decolli, ma ancorarli alla rumorosità
degli aerei. Vennero fissate due livelli di rumorosità per i diversi aerei, 0.5
qc per gli aerei meno rumorosi e 16 qc per quelli più numerosi. Gli operatori
che lavoravano su Heatrhow potevano scegliere se far volare un maggior numero
di aerei silenziosi o un minor numero di aerei rumorosi. Nel periodo successivo
al 1993 vi furono diversi studi tendenti a dimostrare la non incidenza del
rumore degli aerei sul sonno, ma molto più efficaci e meticolosi erano gli
studi economici sugli effetti degli stessi e sulle conseguenze negative che
sarebbero derivate da una loro stringente limitazione.
L’azione
giudiziaria intrapresa dai ricorrenti ha come precedente quella proposta da
altri cittadini inglesi che abitavano nelle vicinanze degli aeroporti prima
dell’entrata in vigore della regolamentazione del 1993 i quali denunciavano, a
differenza del presente caso, una interferenza nella loro vita privata dovuta
al rumore generalizzato provocato dagli aerei che decollavano e atterravano. In
quel caso la Corte respinse le richieste dei ricorrenti.
L’oggetto
del contendere è puntualmente individuato nei paragrafi
94 e 74 ove la Corte specifica che le denunce dei ricorrenti riguardano solo il
rumore notturno e il suo incremento successivo al 1993. Differenti sono, per
tanto, i fatti e i tempi rispetto alla precedente azione.
Le
difese dei ricorrenti (par. 76 e segg.) denunciano che
subivano un’interferenza non giustificata in una società democratica e la
limitatezza ed angustia degli studi del settore che non analizzavano e
studiavano a fondo i problemi al sonno dei residenti. Lacunosi erano, altresì,
gli studi sul settore in ambito economico che non distinguevano adeguatamente
gli effetti economici dei voli notturni e analizzavano complessivamente la
situazione, sicchè risultava difficile scindere gli effetti economici dei voli
effettuati la notte da quelle diurni.
Il
Governo dal canto suo si difendeva dicendo che erano insignificanti i numeri
dei voli che si effettuavano prima delle 04:00 e che invece era maggiormente
significante quello che si concentrava successivamente tra le 06:00 e 06:30
(nella stagione invernale si effettuavano complessivamente 1786 voli e in
quella estiva 1914 negli orari in questione). Il livello di rumore, in ogni
caso era inferiore a quello precedentemente riscontrato. Infine il Governo
riteneva che nell’adottare la regolamentazione del 1993 aveva tenuto in
adeguata considerazione i diversi interessi coinvolti, come previsto dall’art.
8 della Convenzione. In ogni caso il Governo riferiva che la regolamentazione
del 1993 aveva ricevuto il plauso e il benestare delle organizzazioni che erano
interessate ai voli notturni. “Una riduzione o limitazione dei voli notturni
avrebbe avuto severe implicazioni sulla competitività dell’aeroporto di
Heathrow e sulle linee aeree che operavano lì. Queste affermazioni erano
supportate da commenti scritti ricevuti dalla British Airways.” Si
affermava che l’interesse centrale tenuto in considerazione nella
regolamentazione successiva al 1993 era il benessere economico del Regno Unito
e che questo giustificava l’inconvenienza dell’incremento del rumore notturno.
Il
Giudizio della Corte Europea dei Diritti Dell’Uomo e i principi affermati (Par.
94-107). La Corte non usa mezzi termini nel condannare il Regno Unito. Diversi
sono i principi evincibili nella motivazione che potranno avere una rilevante
applicazione non solo nell’ambito della procedura innanzi alla Corte di
Strasburgo ma anche, e soprattutto, all’interno degli ordinamenti nazionali
chiamati ad applicare e rispettare la Convenzione e i suoi protocolli. L’art. 8
della Convenzione si compone di due norme. Nella prima parte si riferisce: “Ogni
persona ha diritto al rispetto della sua vita familiare, del suo domicilio e
della sua corrispondenza”. Questa norma può essere soggetta a due
interpretazioni tra di loro non in contrasto. Da un lato il diritto ad rispetto
della propria vita familiare e del domicilio da intendersi con diritto alla non
ingerenza ed interferenza. Il comportamento dello Stato, quindi, è propriamente
passivo e di “rispetto” degli ambiti privati. Dall’altro da questa norma può
ben sorgere un obbligo positivo in capo allo Stato, cioè quello di prendere
tutte le misure necessarie e sufficienti a limitare le ingerenze nella vita
familiare e nel domicilio altrui si da rendere effettivo il diritto
riconosciuto dalla norma in commento.
Il
secondo comma prevede: “Non può esservi ingerenza di autorità pubblica
nell’esercizio di tale diritto a meno che tale ingerenza si prevista dalla
legge e costituisca una misura che, in una società democratica, è necessaria
alla sicurezza nazionale, alla pubblica sicurezza, al benessere economico del
paese, alla difesa dell’ordine e alla prevenzione dei reati, alla protezione
della salute o della morale, o alla protezione dei diritti e delle libertà
altrui.” Quest’articolo contiene una molteplicità di norme. Possiamo
tentare di analizzarlo scindendole in quanto dalla loro individuazione dipende
concretamente la loro effettiva applicazione.
Mentre nel primo comma abbiamo avuto il riconoscimento del diritto e la
definizione delle sue caratteristiche in questo secondo comma vediamo quali
sono le condizioni per le quali è ammessa una sua limitazione. I limiti posti
all’esercizio del diritto sono alquanto stringenti.
In
un primo momento abbiamo una imposizione di un obbligo ben preciso (Non può
esservi ingerenza di autorità pubblica nell’esercizio di tale diritto) e
poi la elencazione delle possibili cause di giustificazione che legittimano una
tale limitazione. Abbiamo, ancora una volta, l’affermazione del principio della
legalità e della supremazia della legge: se limitazioni devono, o possono
esserci, queste devono essere previste ed imposte dalla legge (a meno che
tale ingerenza si prevista dalla legge) . Da qui può derivare una
limitazione agli atti idonei a comprimere i diritti riconosciuti: Soltanto la
legge, con le garanzie tipiche degli ordinamenti dai quali proviene, può
imporre limitazioni o restrizioni e non atti gerarchicamente inferiori e
subordinati i quali, al più, possono essere applicativi della stessa. Ma il
limite ancora più stringente viene posto subito dopo: non solo le limitazioni
devono essere imposte dalla legge ma queste (cioè la limitazione ai diritti del
1° comma) devono essere una misura “necessaria”. Il legislatore nell’imporre
limitazioni al diritto al rispetto della vita familiare, del domicilio e della
corrispondenza, deve adeguatamente valutare tutti gli interessi in gioco e
coinvolti nella fattispecie e giungere ad una loro adeguata ponderazione
(cosiddetto principio di ragionevolezza). Nell’ultima parte abbiamo
l’elencazione delle cause che possono giustificare una limitazione dei diritti
di cui al I comma.
Nel
caso concreto la causa di giustificazione dell’ingerenza è rappresentata dal
“benessere economico del paese” ma limitazione ai diritti degli individui deve
trovare un’adeguata motivazione e giustificazione. Nell’adottare le misure
concrete tendenti a garantire un adeguato bilanciamento tra i contrapposti
interessi, soprattutto nel caso in cui vengano coinvolti campi particolarmente
sensibili, il semplice riferimento ai superiori interessi dell’economia
nazionale è insufficiente. E‘ evidente che, in questo caso, non si ha
un’adeguata ponderazione poiché si valuta soltanto un elemento del sinallagma.
Da
ciò deriva un altro importante obbligo in capo allo Stato: nell’adottare gli
strumenti che portano ad una restrizione dei diritti garantiti dal 1° comma
bisogna concretamente adottare tutte le misure necessarie limitare al minimo
l’ingerenza esterna con gli stessi, verificando, se è possibile, l’esistenza o
la possibilità di applicare misure alternative che comportino una minore e meno
penetrante limitazione.
La
Corte rileva come concretamente da un lato manchino completi e sufficienti
studi nel campo economico che in quello “sanitario”. Non vi sono studi seri,
attendibili e critici che dimostrino gli effetti economici provocati
dall’incremento dei voli notturni sull’economia nazionale britannica.
Contemporaneamente mancano anche studi che dimostrino gli effetti dell’aumento
del rumore notturno sul sonno dei residenti. Infatti nell’adottare la
regolamentazione del 1993 si fece riferimento allo studio sul sonno
commissionato dal dipartimento dal Dipartimento dei Trasporti, pubblicato nel
1992 e facente riferimento al periodo precedente e non faceva assolutamente
riferimento ai problemi sulla prevenzione dei disturbi sul sonno.
La
Corte conclude, per tanto, asserendo che in mancanza di un serio ed adeguato
studio che valuti l’estensione e l’impatto delle interferenze provocate
dall’incremento dei voli notturni sul loro sonno,e in assenza di un serio,
adeguato e preventivo studio con lo scopo di trovare la soluzione meno onerosa
ai diritti umani non è possibili giustificare l’interferenza operata
semplicemente sulla base di una non dimostrata prevalenza degli interessi
economici.
Avvocato
Andrea Anfuso Alberghina (foro di Caltagirone)
e-mail:
avv.anfuso@excite.com
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF HATTON AND
OTHERS v. THE UNITED KINGDOM
(Application no. 36022/97)
JUDGMENT
STRASBOURG
2 October 2001
This judgment will become final in the
circumstances set out in Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Hatton and Others v. the
United Kingdom,
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr L. Loucaides,
Mr P. Kuris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Mrs H.S. Greve, judges,
Sir Brian Kerr, ad hoc judge,
and Mrs S. Dollé, Section
Registrar,
Having deliberated in private on 16 May
2000, 4 July 2000 and on 11 September 2001,
Delivers the following judgment, which was
adopted on the last-mentioned date:
PROCEDURE
1. The case
originated in an application (no. 36022/97) against the United Kingdom
lodged on 6 May 1997 with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by eight United
Kingdom nationals, Ruth Hatton, Peter Thake, John Hartley, Philippa
Edmunds, John Cavalla, Jeffray Thomas, Richard Bird and Tony Anderson (“the
applicants”).
2. The applicants,
who had been granted legal aid, were represented by Mr Richard Buxton, a lawyer
practising in Cambridge. The Government of the United Kingdom (“the
Government”) were represented by their Agent, Mr Huw Llewellyn, Foreign
and Commonwealth Office.
3. Following the entry
into force of Protocol No. 11 to the Convention on 1 November 1998, and in
accordance with the provisions of Article 5 § 2 thereof, the
case falls to be examined by the Court.
4. The application
was allocated to the Third Section of the Court (Rule 52 § 1 of
the Rules of Court). Within that Section, the Chamber that would consider the
case (Article 27 § 1 of the Convention) was constituted as
provided in Rule 26 § 1 of the Rules of Court. Sir Nicolas
Bratza, the judge elected in respect of the United Kingdom, withdrew from
sitting in the case (Rule 28). The Government accordingly appointed Sir
Brian Kerr to sit as an ad hoc judge (Article 27 § 2 of
the Convention and Rule 29 § 1).
5. A hearing on
admissibility and merits (Rule 54 § 4) took place in public in the Human Rights
Building, Strasbourg, on 16 May 2000.
There appeared before the Court:
(a) for the Government
Mr H. Llewellyn, Agent,
Mr J. Eadie, Counsel,
Mr P. Reardon, Department of the Environment,
Transport and the Regions, Adviser;
(b)
for the applicants
Mr D. Anderson QC, Counsel,
Mr R. Buxton,
Mrs S. Ring, Solicitors,
Mr C. Stanbury, Adviser,
Mrs R. Hatton,
Mr J. Thomas,
Mr A. Anderson, Applicants.
The Court heard addresses by
Mr James Eadie and Mr David Anderson.
6. By a decision of
16 May 2000, following the hearing, the Chamber declared the application
admissible.
7. The applicants
and the Government each filed observations on the merits
(Rule 59 § 1).
8. On 30 May 2000,
third-party comments were received from British Airways, which had been given
leave by the President following the hearing to intervene in the written
procedure (Article 36 § 2 of the Convention and
Rule 61 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The position of the individual applicants
9. The noise levels
experienced by each applicant, and the effect on each of them individually, are
as follows:
10. Ruth Hatton was
born in 1963 and, until 1997, lived in East Sheen with her husband and two
children. From 1993, when the level of night noise increased, Mrs Hatton found
the noise levels to be “intolerable” at night. The noise levels were greater
when aircraft are landing at Heathrow from the east. When this happened, Mrs
Hatton was unable to sleep without ear plugs and her children were frequently
woken up before 6 a.m., and sometimes before 5 a.m. If Mrs Hatton did not wear
ear plugs, she would be woken by aircraft activity at around 4 a.m. She was
sometimes able to go back to sleep, but found it impossible to go back to sleep
once the “early morning bombardment” started which, in the winter of 1996/1997,
was between 5 a.m. and 5.30 a.m. When she was woken in this manner,
Mrs Hatton tended to suffer from a headache for the rest of the day. When
aircraft were landing from the west the noise levels were lower, and
Mrs Hatton’s children slept much better, generally not waking up until
after 6.30 a.m. In the winter of 1993/1994, Mrs Hatton became so run down and
depressed by her broken sleep pattern that her doctor prescribed anti-depressants.
In October 1997, Mrs Hatton moved with her family to Kingston-upon-Thames in
order to get away from the aircraft noise at night.
11. Peter Thake was
born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His
home in Hounslow was situated approximately 4 km from Heathrow airport and
slightly to the north of the southern flight path. In about 1993, the level of
disturbance at night from aircraft noise increased notably, and Mr Thake began
to be woken or kept awake at night by aircraft noise. Mr Thake found it
particularly difficult to sleep in warmer weather, when open windows increased
the disturbance from aircraft noise, and closed windows made it too hot to
sleep. Mr Thake found it difficult to go back to sleep after being woken by
aircraft noise early in the morning. He was sometimes kept awake by aeroplanes
flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m.
Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the
middle of the night, for example when diverted from another airport. In 1997,
Mr Thake became aware that he could complain to the Heathrow Noise Line about
aircraft noise if he made a note of the time of the flight. By 30 April 1997,
Mr Thake had been sufficiently disturbed to note the time of a flight, and made
a complaint to the Heathrow Noise Line on 19 occasions. Mr Thake remained
in Hounslow until February 1998 because his family, friends and place of work
were in the Heathrow area. Mr Thake moved to Winchester, Hampshire, when a
suitable job opportunity arose, even though it meant leaving his family and
friends, in order to escape from the aircraft noise, which was “driving [him]
barmy”.
12. John Hartley was
born in 1948 and lives in Richmond with his wife. He has lived at his present
address since 1989. His house is about 8 miles (13 km) from Heathrow airport,
and is situated almost directly under the approach to the airport’s southern
runway. The windows of the house are double-glazed. From 1993, Mr Hartley
noticed a “huge” increase in the disturbance caused by flights between 6 a.m.
and 6.30 a.m. (or 8 a.m. on Sundays). The British Airports Authority did not
operate a practice of alternation (using only one runway for landings for half
the day, and then switching landings to the other runway) during this period as
it did during the day, and the airport regularly had aircraft landing from the
east on both runways. When the wind was blowing from the west and aeroplanes
were landing from the east, which was about 70% of the time, aircraft noise
would continue until about midnight, so that Mr Hartley was unable to go to
sleep earlier than midnight. He would then find it impossible to sleep after
6 a.m. on any day of the week, and was usually disturbed by aircraft noise
at about 5 a.m., after which he found he could not go back to sleep. When the
aeroplanes were landing from the west, Mr Hartley was able to sleep.
13. Philippa Edmunds
was born in 1954 and lives with her husband and two children in East
Twickenham. She has lived at her present address since 1992. Ms Edmund’s house
is approximately one kilometre from the Heathrow flight path. Before 1993, Ms
Edmunds was often woken by aircraft noise at around 6 a.m. From 1993, she
tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband
installed double-glazing in their bedroom to try to reduce the noise. Although
the double-glazing reduced the noise, Ms Edmunds continued to be woken by
aircraft. Ms Edmunds suffered from ear infections in 1996 and 1997 as a result
of wearing ear plugs at night, and although she was advised by a doctor to stop
using them, she continued to do so in order to be able to sleep. Ms Edmunds was
also concerned about the possible long-term effects of using ear plugs,
including an increased risk of tinnitus. Ms Edmunds’s children both suffered
from disturbance by aircraft noise.
14. John Cavalla was
born in 1925. From 1970 to 1996, he lived in Isleworth. Mr Cavalla lives with
his wife. Mr Cavalla’s house in Isleworth was directly under the flight path of
the northern runway at Heathrow airport. In the early 1990s, the noise climate
deteriorated markedly, partly as a result of a significant increase in traffic,
but mainly as a result of aircraft noise in the early morning. Mr Cavalla
noticed that air traffic increased dramatically between 6 a.m. and 7 a.m. as a
result of the shortening of the night quota period. Mr Cavalla found that, once
woken by an aircraft arriving at Heathrow airport in the early morning, he was
unable to go back to sleep. In 1996, Mr Cavalla and his wife moved to Sunbury
in order to get away from the aircraft noise. After moving house, Mr Cavalla
did not live under the approach tracks for landing aircraft, and aircraft used
the departure route passing over his new home only very rarely at night.
Consequently, Mr Cavalla was only very rarely exposed to any night-time
aircraft noise following his move.
15. Jeffray Thomas
was born in 1928 and lives in Kew with his wife and two sons, and the wife and
son of one of those sons. Mr Thomas has lived at his present address since
1975. His house lies between the north and south Heathrow flight paths.
Aircraft pass overhead on seven or eight days out of every ten, when the
prevailing wind is from the west. Mr Thomas noticed a sudden increase in night
disturbance in 1993. Mr Thomas would find that he was awoken at 4.30 a.m., when
three or four large aircraft tended to arrive within minutes of each other.
Once he was awake, one large aeroplane arriving every half an hour was sufficient
to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started
arriving at frequencies of up to one a minute until about 11 p.m.
16. Richard Bird was
born in 1933 and lived in Windsor for 30 years until he retired in December
1998. His house in Windsor was directly under the westerly flight path to
Heathrow airport. In recent years, and particularly from 1993, he and his wife
suffered from intrusive aircraft noise at night. Although Mr Bird observed that
both take-offs and landings continued later and later into the evenings, the
main problem was caused by the noise of early morning landings. He stated that
on very many occasions he was woken at 4.30 a.m. and 5 a.m. by incoming
aircraft, and was then unable to get back to sleep, and felt extremely tired
later in the day. Mr Bird retired in December 1998, and he and his wife moved
to Wokingham, in Surrey, specifically to get away from the aircraft noise which
was “really getting on [his] nerves”.
17. Tony Anderson
was born in 1932 and lives in Touchen End, which is under the approach to
runway 09L at Heathrow airport, and approximately 9 or 10 nautical miles from
the runway. Mr Anderson has lived in Touchen End since 1963. By 1994, Mr
Anderson began to find that his sleep was being disturbed by aircraft noise at
night, and that he was being woken at 4.15 a.m. or even earlier by aircraft
coming in from the west to land at Heathrow airport.
The regulatory regime for Heathrow airport
18. Heathrow airport
is the busiest airport in Europe, and the busiest international airport in the
world. It is used by over 90 airlines, serving over 180 destinations
world-wide. It is the United Kingdom’s leading port in terms of visible trade.
19. Restrictions on
night flights at Heathrow airport were introduced in 1962 and have been
reviewed periodically, most recently in 1988, 1993 and 1998.
20. Between 1978 and
1987, a number of reports into aircraft noise and sleep disturbance were
published by or on behalf of the Civil Aviation Authority.
21. A Consultation
Paper was published by the United Kingdom Government in November 1987 in the
context of a review of the night restrictions policy at Heathrow. The
Consultation Paper stated that research into the relationship between aircraft
noise and sleep suggested that the number of movements at night could be
increased by perhaps 25% without worsening disturbance, provided Leq were not
increased (dBA Leq metric is a measurement of noise exposure).
22. It indicated that
there were two reasons for not considering a ban on night flights: first, that
a ban on night flights would deny airlines the ability to plan some scheduled
flights in the night period, and to cope with disruptions and delays; secondly,
that a ban on night flights would damage the status of Heathrow airport as a
24-hour international airport (with implications for safety and maintenance and
the needs of passengers) and its competitive position in relation to a number
of other European airports.
23. From 1988 to
1993, night flying was regulated solely by means of a limitation upon the
number of take-offs and landings permitted at night. The hours of restriction
were as follows:
Summer 11.30
p.m. to 6 a.m. weekdays
11.30
p.m. to 6 a.m. Sunday landings
11.30
p.m. to 8 a.m. Sunday take-offs
Winter 11.30
p.m. to 6.30 a.m. weekdays
11.30
p.m. to 8 a.m. Sunday take-offs and landings
24. In July 1990,
the Department of Transport commenced an internal review of the restrictions on
night flights. A new classification of aircraft and the development of a quota
count system were the major focus of the review. As part of the review, the
Department of Transport asked the Civil Aviation Authority to undertake further
objective study of aircraft noise and sleep disturbance.
25. The fieldwork
for the study was carried out during the summer of 1991. Measurements of
disturbance were obtained from 400 subjects living in the vicinity of Heathrow,
Gatwick, Stansted and Manchester airports. The findings were published in
December 1992 as the “Report of a Field Study of Aircraft Noise and Sleep
Disturbance” (“the 1992 sleep study”). It found that, once asleep, very few
people living near airports were at risk of any substantial sleep disturbance
due to aircraft noise and that, compared with the overall average of about 18
nightly awakenings without any aircraft noise, even large numbers of noisy
night-time aircraft noise movements would cause very little increase in the
average person’s nightly awakenings. It concluded that the results of the field
study provided no evidence to suggest that aircraft noise was likely to cause
harmful after effects. It also emphasised, however, that its conclusions were
based on average effects, and that some of the subjects of the study (2 to 3%)
were over 60% more sensitive than average.
26. In January 1993,
the Government published a Consultation Paper regarding a proposed new scheme
for regulating night flights at the three main airports serving London:
Heathrow, Gatwick and Stansted. In considering the demand for night flights,
the Consultation Paper made reference to the fact that if restrictions on night
flights were imposed in the United Kingdom, certain flights would not be as
convenient or their costs would be higher than competitors abroad could offer,
and that passengers would choose alternatives that better suited their
requirements.
27. It also stated
that various foreign operators were based at airports with no night
restrictions, which meant that they could keep prices down by achieving a high
utilisation of aircraft, and that this was a crucial factor in attracting
business in what was a highly competitive and price sensitive market.
28. Further, the
Consultation Paper stated that both scheduled and charter airlines believed
that their operations could be substantially improved by being allowed more
movements during the night period, especially landings.
It also indicated that charter
companies required the ability to operate in the night period, as they operated
in a highly competitive, price sensitive market and needed to contain costs as
much as possible. The commercial viability of their business depended upon high
utilisation of their aircraft, which typically required three rotations a day
to nearer destinations, and which could only be fitted in using movements at
night.
29. Finally, in
reference to the demand for night flights, the Consultation Paper referred to
the continuing demand for some all-cargo flights at night carrying mail and
other time-sensitive freight such as newspapers and perishable goods, and
referred to the fact that all-cargo movements are banned, whether arriving or
departing, for much of the day at Heathrow airport.
30. The Consultation
Paper referred to the 1992 sleep study stating that the 1992 sleep study found
that the number of disturbances caused by aircraft noise was so small that it
had a negligible effect on overall normal disturbance rates, and that disturbance
rates from all causes were not at a level likely to affect people’s health or
well-being.
31. The Consultation
Paper further stated that, in keeping with the undertaking given in 1988 not to
allow a worsening of noise at night, and ideally to improve it, it was proposed
that the quota for the next five years based on the new system should be set at
a level so as to keep overall noise levels below those in 1988.
32. A considerable
number of responses to the Consultation Paper were received from trade and
industry associations with an interest in air travel (including the
International Air Transport Association [“IATA”], the Confederation of British
Industry and the London and Thames Valley Chambers of Commerce) and from
airlines, all of which emphasised the economic importance of night flights.
Detailed information and figures were provided by the associations and the
airlines to support their responses.
33. On 6 July 1993
the Secretary of State for Transport announced his intention to introduce, with
effect from October 1993, a quota system of night flying restrictions, the
stated aim of which was to reduce noise at the three main London airports,
which included Heathrow (“the 1993 Scheme”).
34. The 1993 Scheme introduced
a noise quota scheme for the night quota period. Under the noise quota
scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the
quietest) and 16 QC (for the noisiest). Heathrow airport was then allotted a
certain number of quota points, and aircraft movements had to be kept within
the permitted points total. The effect of this was that, under the 1993 Scheme,
rather than a maximum number of individual aircraft movements being specified,
aircraft operators could choose within the noise quota whether to operate a
greater number of quieter aeroplanes or a lesser number of noisier aeroplanes.
The system was designed, according to the 1993 Consultation Paper, to encourage
the use of quieter aircraft by making noisier types use more of the quota for
each movement.
35. The 1993 Scheme
defined “night” as the period between 11 p.m. and 7 a.m., and further
defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week,
throughout the year, when the controls were strict. During the night, operators
were not permitted to schedule the noisier types of aircraft to take off (8 QC
– quota count – or 16 QC) or to land (16 QC). During the night quota period,
aircraft movements were restricted by a movements limit and a noise quota,
which were set for each season (summer and winter).
36. The 1993
Consultation Paper had proposed a rating of 0 QC for the quietest aircraft.
This would have allowed an unlimited number of these aircraft to fly at night,
and the Government took account of objections to this proposal in deciding to
rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in
accordance with the proposals set out in the 1993 Consultation Paper.
37. The local
authorities for the areas around the three main London airports sought judicial
review of the Secretary of State’s decision to introduce the 1993 Scheme,
making four consecutive applications for judicial review and appealing twice to
the Court of Appeal (see paragraphs 70-73 below) In consequence of the
various judgments delivered by the High Court and Court of Appeal, the
Government consulted on revised proposals in October and November 1993;
commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee
of the Department of the Environment, Transport and the Regions [formerly the
Department of Transport; “the DETR”]) in May 1994 into ground noise at night at
Heathrow, Gatwick and Stansted airports; added to the quota count system an
overall maximum number of aircraft movements; issued a further Consultation
Paper in March 1995, and issued a supplement to the March 1995 Consultation
Paper in June 1995.
38. The June 1995
supplement stated that the Secretary of State’s policies and the proposals
based on them allowed more noise than was experienced from actual aircraft
movements in the summer of 1988, and acknowledged that this was contrary to
Government policy, as expressed in the 1993 Consultation Paper. As part of the
1995 review of the 1993 Scheme, the Government reviewed the Civil Aviation
Authority reports on aircraft noise and sleep disturbance, including the 1992
sleep study. The DETR prepared a series of papers on night arrival and
departure statistics at Heathrow, Gatwick and Stansted airports, scheduling and
curfews in relation to night movements, runway capacity between 6 a.m. and 7
a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night
departures for four sample weeks in 1994. The DETR also considered a paper
prepared by Heathrow Airport Limited on the implications of a prohibition on
night flights between 12 a.m. and 5.30 a.m.
39. On 16 August
1995, the Secretary of State for Transport announced that the noise quotas and all
other aspects of the night restrictions regime would remain as previously
announced. In July 1996, the Court of Appeal decided that the Secretary of
State had given adequate reasons and sufficient justification for his
conclusion that it was reasonable, on balance, to run the risk of diminishing
to some degree local people’s ability to sleep at nights because of the other
countervailing considerations to which he was, in 1993, willing to give greater
weight, and that by June 1995 errors in the consultation papers had been
corrected and the new policy could not be said to be irrational. On 12 November
1996, the House of Lords dismissed a petition by the local authorities for
leave to appeal against the decision of the Court of Appeal.
40. The movement limits
for Heathrow under the 1993 Scheme, introduced as a consequence of the legal
challenges in the domestic courts, were set at 2,550 per winter season from
1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the
seasons being deemed to change when the clocks change from GMT to BST). The
noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each
winter season and 7,000 for each summer season. Flights involving emergencies
were excluded from the restrictions. The number of movements permitted during
the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the
same level as between 1988 and 1993. At the same time, the number of movements
permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under
the 1993 Scheme due to the reduction in the length of the night quota period.
41. In September
1995, a trial was initiated at Heathrow airport of modified procedures for
early morning landings (those between 4 a.m. and 6.00 a.m.). The aim of the
trial, which was conducted by National Air Traffic Services Limited on behalf
of the DETR, was to help alleviate noise over parts of central London in the
early morning. An interim report, entitled “Assessment of Revised Heathrow
Early Mornings Approach Procedures Trial”, was published in November 1998.
42. In December
1997, a study, commissioned by the DETR and carried out by the National
Physical Laboratory gave rise to a report, “Night noise contours: a feasibility
study”, which was published in December 1997. The report contained a detailed
examination of the causes and consequences of night noise, and identified
possible areas of further research. It concluded that there was not enough
research evidence to produce “scientifically robust night contours that depict
levels of night-time annoyance”.
43. In 1998, the
Government conducted a two-stage consultation exercise on night restrictions at
Heathrow, Gatwick and Stansted airports. In February 1998, a preliminary
Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was
published. The Preliminary Consultation Paper stated that most night movements
catered primarily for different needs from those that took place during the
daytime, and set out reasons for allowing night flights. These were essentially
the same as those given in the 1993 Consultation Paper.
44. In addition, the
Preliminary Consultation Paper referred to the fact that air transport was one
of the fastest growing sectors of the world economy and contained some of the
United Kingdom’s most successful firms. Air transport facilitated economic
growth, world trade, international investment and tourism, and was of
particular importance to the United Kingdom because of its open economy and
geographical position. The Consultation Paper went on to say that permitting
night flights, albeit subject to restrictions, at major airports in the United
Kingdom had contributed to this success.
45. The Government
set movement limits and noise quotas for winter 1998/99 at the same level as
for the previous winter, in order to allow adequate time for consultation.
46. The British Air
Transport Association (“BATA”) commissioned a report from Coopers & Lybrand
into the economic costs of maintaining the restrictions on night flights. The
report was published in July 1997 and was entitled “The economic costs of night
flying restrictions at the London airports”. The report concluded that the
economic cost of the then current restrictions being maintained during the
period 1997/1998 to 2002/2003 was about £850 million. BATA submitted the report
to the Government when it responded to the Preliminary Consultation Paper.
47. On 10 September
1998, the Government announced that the movement limits and noise quotas for
summer 1999 would be the same as for summer 1998.
48. In November
1998, the Government published the second stage Consultation Paper on night
restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated
that it had been the view of successive Governments that the policy on night
noise should be firmly based on research into the relationship between aircraft
noise and interference with sleep and that, in order to preserve the balance
between the different interests, this should continue to be the basis for
decisions. The Consultation Paper indicated that ‘interference with sleep’ was
intended to cover both sleep disturbance (an awakening from sleep, however
short) and sleep prevention (a delay in first getting to sleep at night, and
awakening and then not being able to get back to sleep in the early morning).
The Consultation Paper stated that further research into the effect of aircraft
noise on sleep had been commissioned, which would include a review of existing
research in the United Kingdom and abroad, and a trial to assess methodology
and analytical techniques to determine whether to proceed to a full scale study
of either sleep prevention or total sleep loss.
49. The Consultation
Paper repeated the finding of the 1992 sleep study that for noise events in the
range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person
being awakened by an aircraft noise event was about 1 in 75. It acknowledged
that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and
that while there was a substantial body of research on sleep disturbance, less
was known about sleep prevention or total sleep loss.
50. The Consultation
Paper stated that the objectives of the current review were, in relation to
Heathrow, to strike a balance between the need to protect local communities
from excessive aircraft noise levels at night and to provide for air services
to operate at night where they are of benefit to the local, regional and
national economy; to ensure that the competitive factors affecting United
Kingdom airports and airlines and the wider employment and economic
implications were taken into account; to take account of the research into the
relationship between aircraft noise and interference with sleep and any health
effects; to encourage the use of quieter aircraft at night; to put in place at
Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which
would bring about further improvements in the night noise climate around the
airport over time and to update the arrangements as appropriate.
51. The Consultation
Paper stated that since the introduction of the 1993 Scheme, there had been an
improvement in the noise climate around Heathrow during the night quota period,
based on the total of the quota count ratings of aircraft counted against the
noise quota, but that there had probably been a deterioration over the full
night period between 11 p.m. and 7 a.m. as a result of the growth in traffic
between 6 a.m. and 7 a.m.
52. The Consultation
Paper found a strong customer preference for overnight long-haul services from
the Asia-Pacific region.
53. The Consultation
Paper indicated that the Government had not attempted to quantify the aviation
and economic benefits of night flights in monetary terms. This was because of
the difficulties in obtaining reliable and impartial data on passenger and
economic benefits (some of which was commercially sensitive) and modelling
these complex interactions. BATA had submitted a copy of the Coopers &
Lybrand July 1997 report with its response to the Preliminary Consultation
Paper, and the Consultation Paper noted that the report estimated the value of
an additional daily long haul scheduled night flight at Heathrow to be £20m to
£30m per year, over half of which was made up of airline profits. The
Consultation Paper stated that the financial effects on airlines were
understood to derive from estimates made by a leading United Kingdom airline.
Other parts of the calculation reflected assumptions about the effects on
passengers and knock-on effects on other services, expressed in terms of an
assumed percentage of the assumed revenue earned by these services. The
Consultation Paper stated that the cost of restricting existing night flights
more severely might be different, and that BATA’s figures took no account of
the wider economic effects which were not captured in the estimated airline and
passenger impacts.
54. The Consultation
Paper stated that, in formulating their proposals, the Government had taken
into account both BATA’s figures and the fact that it was not possible for the
Government to test the estimates or the assumptions made by BATA. Any value
attached to a “marginal” night flight had to be weighed against the
environmental disadvantages. These could not be estimated in monetary terms,
but it was possible, drawing on the 1992 sleep study, to estimate the numbers
of people likely to be awakened. The Consultation Paper concluded that in
forming its proposals, the Government must take into account, on the one hand,
the important aviation interests involved and the wider economic
considerations. It seemed clear that United Kingdom airlines and airports would
stand to lose business, including in the daytime, if prevented by unduly severe
restrictions from offering limited services at night; that users could also
suffer, and that the services offered by United Kingdom airports and airlines
would diminish, and with them the appeal of London and the United Kingdom more
generally. On the other hand, these considerations had to be weighed against
the noise disturbance caused by night flights. The proposals made in the
Consultation Paper aimed to strike a balance between the different interests
and, in the Government’s view, would protect local people from excessive
aircraft noise at night.
55. The main
proposals in relation to Heathrow were: not to introduce a ban on night
flights, or a curfew period; to retain the seasonal noise quotas and movement
limits; to review the QC classifications of individual aircraft and, if this produced
significant reclassifications, to reconsider the quota limits; to retain the QC
system; to review the QC system before the 2002 summer season (when fleet
compositions would have changed following completion of the compulsory
phase-out in Europe of Chapter 2 civil aircraft, with the exception of
Concorde, which began in April 1995), in accordance with the policy of
encouraging the use of quieter aircraft; to reduce the summer and winter noise
quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota
period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft
classified as QC8 on arrival or departure to match those for QC16 and to ban
QC4 aircraft from being scheduled to land or take off during the night quota
period from the start of the 2002 summer season (i.e. after completion of the
compulsory Chapter 2 phase out).
56. The Consultation
Paper stated that since the introduction of the 1993 scheme, headroom had
developed in the quotas, reducing the incentive for operators to use quieter
aircraft. The reduction in summer and winter noise quotas to nearer the level
of current usage was intended as a first step to restoring the incentive. The
winter noise quota level under the 1993 scheme was 5,000 QC points, and the average
usage in the last two traffic seasons had been 3,879 QC points. A reduction to
4,000 was proposed. The summer noise quota level had been 7,000 points, and the
average usage in the last two seasons was provisionally calculated at 4,472. A
reduction to 5,400 was proposed. The new levels would remain in place until the
end of the summer 2004 season, subject to the outcome of the QC review.
57. Part 2 of the
Consultation Paper invited comments as to whether runway alternation should be
introduced at Heathrow at night, and on the preferential use of Heathrow’s
runways at night.
58. On 10 June 1999,
the Government announced that the proposals in the November 1998 Consultation
Paper would be implemented with effect from 31 October 1999, with limited
modifications. With respect to Heathrow, the only modification was that there
was to be a smaller reduction in the noise quotas than proposed. The quotas
were set at 4,140 QC points for the winter, and 5,610 QC points for the
summer. The effect of this was to set the winter quota at a level below actual
usage in winter 1998/99.
59. The 1999 Scheme
came into effect on 31 October 1999.
60. On 10 November
1999, a report was published on “The Contribution of the Aviation Industry to
the UK Economy”. The report was prepared by Oxford Economic Forecasting and was
sponsored by a number of airlines, airport operators and BATA, as well as the
Government.
61. On 23 November
1999, the Government announced that runway alternation at Heathrow would be
extended into the night “at the earliest practicable opportunity”, and issued a
further consultation paper concerning proposals for changes to the preferential
use of Heathrow’s runways at night.
62. In December
1999, the DETR and National Air Traffic Services Limited published the final
report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”.
The purpose of the report was to describe objectively the sources of
operational noise for arriving aircraft, to consider possible means of noise
amelioration, and to make recommendations to the DETR.
63. In March 2000,
DORA published a report, prepared on behalf of the DETR, entitled “Adverse
effects of night-time aircraft noise”. The report identified a number of issues
for possible further research, and was intended to form the background to any
future United Kingdom studies of night-time aircraft noise. The report stated
that gaps in knowledge had been identified, and indicated that the DETR was
considering whether there was a case for a further full-scale study on the
adverse effects of night-time aircraft noise, and had decided to commission two
further short research studies to investigate the options. These studies were
commissioned in the autumn of 1999, before the publication of the DORA report.
One is a trial study to assess research methodology. The other is a social
survey the aims of which included an exploration of the difference between
objectively measured and publicly received disturbance due to aircraft noise at
night. Both studies are being conducted by university researchers.
64. A series of
noise mitigation and abatement measures is in place at Heathrow airport, in
addition to restrictions on night flights. These include the following:
aircraft noise certification to reduce noise at source; the compulsory phasing
out of older, noisier jet aircraft; noise preferential routes and minimum climb
gradients for aircraft taking off; noise abatement approach procedures
(continuous descent and low power/low drag procedures); limitation of air transport
movements; noise related airport charges; noise insulation grant schemes and
compensation for noise nuisance under the Land Compensation Act 1973.
65. The DETR and the
management of Heathrow airport conduct continuous and detailed monitoring of the
restrictions on night flights. Reports are provided each quarter to members of
the Heathrow Airport Consultative Committee, on which local government bodies
responsible for areas within the vicinity of Heathrow airport, and local
residents’ associations are represented.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. Civil Aviation Act 1982 (“the
1982 Act”)
66. Section 76 (1)
of the 1982 Act provides, so far as relevant:
“No action shall lie in respect of trespass or in respect of
nuisance, by reason only of the flight of an aircraft over any property at a
height above the ground which, having regard to wind, weather and all the
circumstances of the case, is reasonable, or the ordinary incidents of such
flight, so long as the provisions of any Air Navigation Order ... have been
duly complied with ...”
67. Air Navigation
Orders made under the 1982 Act provide for Orders in Council to be made for the
regulation of aviation. Orders in Council have been made to deal with, amongst other
matters, engine emissions, noise certification and compensation for noise
nuisance.
68. Section 78 (3)
of the 1982 Act provides, so far as relevant:
“If the Secretary of State considers it appropriate for the
purpose of avoiding, limiting or mitigating the effect of noise and vibration
connected with the taking-off or landing of aircraft at a designated aerodrome,
to prohibit aircraft from taking off or landing, or limit the number of
occasions on which they may take off or land, at the aerodrome during certain
periods, he may by a notice published in the prescribed manner do all or any of
the following, that is to say–
(a) prohibit aircraft of descriptions specified in the
notice from taking off or landing at the aerodrome (otherwise than in an emergency
of a description so specified) during periods so specified;
(b) specify the maximum number of occasions on which
aircraft of descriptions so specified may be permitted to take off or land at
the aerodrome ... during the periods so specified; ....”
69. Restrictions on
night flights at Heathrow airport are imposed by means of notices published by
the Secretary of State under section 78 (3) of the 1982 Act.
B. The
challenges to the 1993 Scheme
70. The local
authorities for the areas around the three main London airports sought judicial
review of the Secretary of State’s decision to introduce the 1993 Scheme. They
made four consecutive applications for judicial review, and appealed twice to
the Court of Appeal. The High Court declared that the 1993 Scheme was contrary
to the terms of section 78 (3) (b) of the 1982 Act, and
therefore invalid, because it did not “specify the maximum number of occasions
on which aircraft of descriptions so specified may be permitted to take off or
land” but, instead, imposed controls by reference to levels of exposure to
noise energy (R. v. Secretary of State for Transport, ex parte Richmond
upon Thames Borough Council and Others [1994] 1 Weekly Law Reports, p. 74).
71. The Secretary of
State decided to retain the quota count system, but with the addition of an
overall maximum number of aircraft movements. This decision was held by the
High Court to be in accordance with section 78 (3) (b) of the
1982 Act. However, the 1993 Consultation Paper was held to have been
“materially misleading” in failing to make clear that the implementation of the
proposals for Heathrow airport would permit an increase in noise levels over
those experienced in 1988 (R. v. Secretary of State for Transport, ex parte
Richmond upon Thames Borough Council and Others [1995] Environmental Law
Reports, p. 390).
72. Following the
publication of a further consultation paper in March 1995, and of a supplement
to the March 1995 consultation paper in June 1995, the local authorities
brought a further application for judicial review. In July 1996, the Court of
Appeal decided that the Secretary of State had given adequate reasons and
sufficient justification for his conclusion that it was reasonable, on balance,
to run the risk of diminishing to some degree local people’s ability to sleep
at night because of the other countervailing considerations to which he was, in
1993, willing to give greater weight, and that by June 1995 errors in the
consultation papers had been corrected and the new policy could not be said to
be irrational (R. v. Secretary of State for Transport, ex parte Richmond
LBC [1996] 1 Weekly Law Reports, p. 1460).
73. On 12 November
1996, the House of Lords dismissed a petition by the local authorities for
leave to appeal against the decision of the Court of Appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE
8 OF THE CONVENTION
74. The applicants
alleged a violation of Article 8 by virtue of the increase in the level of
noise caused at their homes by aircraft using Heathrow airport at night after
the introduction of the 1993 scheme.
Article 8 of the Convention
provides, so far as relevant, as follows:
“1. Everyone has the right to respect for his private
and family life, his home ...
2. There shall be no interference by a public authority
with the exercise of this right except such as in accordance with the law and
necessary in a democratic society in the interests of ... the economic
well-being of the country ... or for the protection of the rights and freedoms
of others.”
75. The Government
disagreed with the applicants’ contention that there had been a violation of
Article 8.
A. Arguments
of the parties
I. The applicants
76. The applicants
submitted that, after the 1993 scheme was introduced, the level of noise caused
by aircraft taking off and landing at Heathrow airport between 4 a.m. and 7
a.m. increased significantly. They contended that they found it difficult to
sleep after 4 a.m., and impossible after 6 a.m. They submitted that the levels
of noise to which they were exposed at night were well in excess of those which
were considered, internationally, to be tolerable. They contended that the
evidence showed that almost all of them had suffered night noise levels in
excess of 80 dB LA max, and in one case as high as 90 dB LA max. They referred
to the World Health Organisation’s guideline value for avoiding sleep
disturbance at night, of a single noise event of 60 dB LA max, and argued that
the Government had no adequate research to support their contention that levels
of 80 dB LA max were tolerable. The applicants submitted that, in these
circumstances, there had been an interference with their right to respect for
their private and family lives and their home, as guaranteed by Article 8 § 1
of the Convention.
77. The applicants
contended that the interference was not “necessary in a democratic society”.
They submitted that there was a great deal of first-hand evidence of the
disruption, distress and ill-health caused by night flights. They underlined
that the 1992 sleep study dealt only with awakenings from sleep, and reached no
conclusions about the incidence or effects of sleep prevention (delay in first
getting to sleep at night, and not being able to get back to sleep after being
woken in the early morning). The applicants contended that sleep prevention has
never been the subject of adequate scientific study. They submitted that basic
factual information was needed to support an increase in night flights under
the 1993 scheme, and that it was not assembled by the Government.
78. Although they
accepted the general importance of Heathrow airport to the United Kingdom
economy, the applicants contended that the Government had failed to adduce any
evidence of the specific importance of night flights. They referred to the
Oxford Economic Forecasting report of November 1999 on “The Contribution of the
Aviation Industry to the UK Economy”, and noted that the report, which
considered the economic importance of Heathrow airport as a whole, did not
consider separately the economic importance of night flights. They also
submitted a report by Berkeley Hanover Consulting which challenged the validity
of the Oxford report and its conclusions. The applicants contended, further,
that night flights are of benefit only to the airlines which operate them, and
that many other major European airports have greater restrictions on night
flights than those in operation at Heathrow.
79. The applicants
submitted that, in these circumstances, the reasons for the continuation of
night flights adduced by the Government, both in 1993 and subsequently, were
not relevant and sufficient, and that it was open to the Court to find a
violation of Article 8 on this basis alone.
80. The applicants
submitted, further, that the interference with their rights under Article 8 was
not “in accordance with the law”. They contended that, in order to be “in
accordance with the law”, there must be protection in domestic law against
arbitrary interference with the rights guaranteed by Article 8 § 1 of the
Convention; the law must be accessible, and its consequences must be
foreseeable. These features were not present when the Government departed from
its statement of policy “not to allow a worsening of noise at night, and
ideally to improve it” (the 1993 Consultation Paper, paragraph 34), and was
held by the High Court to have been “devious” in its attempt to conceal the
departure (R. v. London Borough of Richmond and Others (No. 3) [1995]
Environmental Law Reports 409).
81. Finally, the applicants
contended that Article 8 is capable of conferring upon individuals a right to
have essential environmental information communicated to them regarding the
extent of an environmental threat to their moral and physical integrity
(relying on the judgment of the Court in Guerra v. Italy, 19 February 1998, Reports
of Judgments and Decisions, 1998-I, § 60), and contended that, a
fortiori, Article 8 required that such information be assembled by the
national authorities. They claimed that the increase in night flights under the
1993 scheme in the absence of proper information constituted in itself a breach
of Article 8 of the Convention.
II. The Government
82. The Government acknowledged
that the number of movements during the night quota period (11.30 p.m. to 6
a.m.) for the period from winter 1997/98 to summer 1999 was greater than that
in 1992/93, and that the increase was greater if the period was taken to
6.30 a.m. They stated that the average QC per movement was significantly
lower than the comparable figure prior to the introduction of the 1993 scheme,
but that the quota count had increased due to the increased number of
movements.
83. The Government’s
analysis of the current rate of arrivals during half hour slots from 4 a.m. to
6 a.m. was as follows:
|
04.00- 04.29 |
04.30- 04.59 |
05.00- 05.29 |
05.30- 05.59 |
Winter |
0.57 |
5.14 |
7.29 |
3.43 |
Summer |
0.14 |
2.29 |
5.86 |
4.86 |
They stated that arrivals
before 4 a.m. were so few as to be statistically insignificant, and that
average arrivals between 6 a.m. and 6.30 a.m. were 17.86 in the winter and
19.14 in the summer.
84. The Government
submitted that the applicants were exposed to lower noise levels than the
applicants in the previous cases in which complaints were made concerning
aircraft noise at Heathrow airport and which were declared admissible by the
Commission (Arrondelle v. the United Kingdom, application no. 7889/97, decision
of 15 July 1980, Decision and Reports (DR) 26, p. 5; Baggs v. the United
Kingdom, application no. 9310/81, decision of 16 October 1985, DR 44, p. 13;
Rayner v. the United Kingdom, application no. 9310/81, decision of 17 July
1986, DR 47, p. 5). With the exception of one of the applicants, Mr Cavalla, at
his former address, all the applicants were exposed to the same or lower noise
levels than Mr Glass at his former address. Mr Glass’s application was declared
inadmissible (application no. 28485/95, decision of 3 December 1997). They
submitted that, in these circumstances, there had been no interference with the
applicants’ rights under Article 8 § 1 of the Convention.
85. The Government
submitted, alternatively, that in deciding to introduce the 1993 scheme they
struck an appropriate and justified balance between the various interests
involved and that, accordingly, any interference with the applicants’ rights
under Article 8 was justified. They referred to the 1992 sleep study which was
in 1993, and remains, the most comprehensive study of its type. They stated
that the 1992 sleep study was commissioned in July 1990 in order to inform the
1993 review of restrictions on night flights, but emphasised that it had been
preceded by a number of earlier detailed reports into aircraft noise and sleep
disturbance, also published by or on behalf of the Civil Aviation Authority.
Further, the Government stated that research undertaken in the United States
since the results of the 1992 sleep study were published had not cast any doubt
on its validity.
86. The Government
pointed out that, as they did not own or operate Heathrow airport or the
aeroplanes which were causing the noise of which the applicants were
complaining, their obligations under Article 8 were properly to be analysed as
positive obligations. They submitted that, in these circumstances, they should
be permitted a greater degree of leeway than in a case of direct interference
by a public authority, although they recognised (referring to the Court’s
Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A
no. 172, § 41), that the applicable principles were broadly similar whichever
analytical approach were to be adopted.
87. The Government
referred to the series of noise mitigation and abatement measures which have
been implemented at Heathrow airport or have otherwise contributed to the
improvement of the noise climate around the airport, in addition to the
restrictions on night flights. They provided detailed information in respect of
each of these measures.
88. The Government
also referred to the responses to the 1993 Consultation Paper received from
trade and industry associations with an interest in air travel and from
airlines, all of which emphasised the economic importance of night flights and
provided detailed information and figures to support their responses. The
Government submitted that night flights form an integral part of the global
network of air services, and that they have a direct impact on the demand for
daytime flights, due to operational constraints (geography, journey length
time, number of time zones and direction of flight, turn-around time and
efficient aircraft utilisation). A prohibition on night flights would therefore
have severe implications for the competitiveness of Heathrow airport and of the
airlines based there. These submissions were supported by the written comments
received from British Airways.
89. The Government
submitted that active and detailed consideration continues to be given to the
issue of whether the research undertaken to date needs to be supplemented and,
if so, in what areas and on what scientific basis. They pointed to the fact
that they are continuing to fund research into sleep disturbance, in the form
of further detailed fieldwork and a laboratory trial.
90. They contended
that the central issue which they considered before deciding upon the 1993
scheme was the extent to which the economic well-being of the United Kingdom,
as represented by the need to meet the requirements of the global market,
justified the inconvenience of night noise to local residents. They submitted
that before taking the relevant decisions, they had available, and considered,
extensive and detailed information regarding the results of research into the
effect of night noise on sleep, and regarding the economic importance of night
flights at Heathrow airport. They claimed that it was not possible to separate
the economic importance of night flights at Heathrow airport from the overall
importance of Heathrow to the United Kingdom economy. They contended further
that, given the range of interests involved, striking a balance is not a
straightforward task, and that it is something which the national authorities
are particularly well placed to do. Finally, the Government submitted that the
balance which they had struck was a fair and reasonable one.
B. Comments
from British Airways plc
91. In written
comments, British Airways plc (“BA”) addressed the commercial significance of
and need to schedule flights which arrive at Heathrow airport at night. BA
indicated that its comments were endorsed by BATA. BA stated that in the last
two seasons (summer 1999 and winter 1999/2000), BA’s night quota flights and
those scheduled to operate in the period up to 6.30 a.m., together with their
return leg flights, accounted for 16% of BA’s total revenue. It stated,
further, that the loss of some or all of its night flights would have a serious
effect on its ability to compete, and that this effect would be disproportionately
great due to both the damage to the network and the scheduling difficulties
which it would entail.
92. BA submitted
that if its flights which were scheduled to arrive before 7.15 a.m. had not
been permitted to operate at Heathrow airport during 1999, it would have lost
49% of its long haul flight output at its main airport base. It would not have
been possible to retime night flights into the day due to the lack of spare
terminal capacity at Terminals 3 and 4 (the terminals for long haul flights at
Heathrow airport) and the fact that no runway slots were available during the
morning period. BA would have suffered a very significant loss of revenue, with
consequent large-scale redundancies.
93. The report by
Berkeley Hanover Consulting submitted by the applicants challenged the validity
of the information provided by BA.
C. The Court’s
assessment
94. The Court
considers that it is not possible to make a sensible comparison between the
situation of the present applicants and that of the applicants in the previous
cases referred to by the Government because, first, the present applicants
complain specifically about night noise, whereas the earlier applicants
complained generally about aircraft noise and, secondly, the present applicants
complain largely about the increase in night noise which they say has occurred
since the Government altered the restrictions on night noise in 1993, whereas
the previous applications concerned noise levels prior to 1993. The Court
concludes, therefore, that the outcome of previous applications is not relevant
to the present case.
95. The Court notes
that Heathrow airport and the aircraft which use it are not owned, controlled
or operated by the Government or by any agency of the Government. The Court
considers that, accordingly, the United Kingdom cannot be said to have
“interfered” with the applicants’ private or family life. Instead, the
applicants’ complaints fall to be analysed in terms of a positive duty on the
State to take reasonable and appropriate measures to secure the applicants’
rights under Article 8 § 1 of the Convention (see the Powell and Rayner v. the
United Kingdom judgment of 21 February 1990, Series A no. 172, § 41, and the
Guerra v. Italy judgment of 19 February 1998, Reports 1998-I, §
58).
96. Whatever
analytical approach is adopted – the positive duty or an interference – the
applicable principles regarding justification under Article 8 § 2 are broadly
similar (the aforementioned Powell and Rayner v. the United Kingdom judgment loc.
cit.). In both contexts, regard must be had to the fair balance that has to
be struck between the competing interests of the individual and of the
community as a whole. In both contexts the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure compliance with the
Convention (see, for example, the Rees v. the United Kingdom judgment of
17 October 1986, Series A no. 106, § 37, as concerns Article 8 § 1,
and the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, §
59, as concerns Article 8 § 2). Furthermore, even in relation to the positive
obligations flowing from Article 8 § 1, in striking the required balance the
aims mentioned in Article 8 § 2 may be of a certain relevance (see the
Rees v. the United Kingdom judgment previously cited, loc. cit.; see also the
Lopez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 54, §
51).
97. The Court would,
however, underline that in striking the required balance, States must have
regard to the whole range of material considerations. Further, in the
particularly sensitive field of environmental protection, mere reference to the
economic well-being of the country is not sufficient to outweigh the rights of
others. The Court recalls that in the above-mentioned Lopez Ostra v. Spain
case, and notwithstanding the undoubted economic interest for the national
economy of the tanneries concerned, the Court looked in considerable detail at
“whether the national authorities took the measures necessary for protecting
the applicant’s right to respect for her home and for her private and family
life ...” (judgment of 9 December 1994, p. 55, § 55). It considers that States
are required to minimise, as far as possible, the interference with these
rights, by trying to find alternative solutions and by generally seeking to
achieve their aims in the least onerous way as regards human rights. In order
to do that, a proper and complete investigation and study with the aim of
finding the best possible solution which will, in reality, strike the right
balance should precede the relevant project.
98. The Court notes
that the Government have acknowledged that, while the average quota count per
movement is now lower than the average prior to the introduction of the 1993
scheme, the increased number of movements has led to an increased quota count
in comparison with the position in 1992/93. This means that, overall, the level
of noise during the quota period (11.30 p.m. to 6 a.m.) has increased under the
1993 scheme. In addition, the Court notes the accounts given by the applicants
of the disturbance to their sleep caused by the increase in noise from night
flights at Heathrow airport from about 1993.
99. The Court must
establish whether, in permitting increased levels of noise over the years since
1993, the Government respected their positive obligation to the applicants.
100. The Court notes
that the Government had, when the 1993 scheme was being introduced and in the
period whilst it was under judicial challenge, a certain amount of information
as to the economic interest in night flights. In particular, they had the
responses of industry and commerce to the Consultation Papers of January and
November 1993, and of 1995. However, they do not appear to have carried out any
research of their own as to the reality or extent of that economic interest.
101. It is true that
a measure of further information as to the economic effects of night flights
has now been assembled. In particular, BATA commissioned the Coopers &
Lybrand report of July 1999 into the economic costs of night flying. This
information, however, came too late to be considered in the process leading up
to the 1993 Scheme (as reviewed in 1995). The Government acknowledged in the
November 1998 Consultation Paper that no attempt was made to quantify the
aviation and economic benefits in monetary terms (paragraph 53 above).
102. The Court
concludes from the above that whilst it is, at the very least, likely that
night flights contribute to a certain extent to the national economy as a
whole, the importance of that contribution has never been assessed critically,
whether by the Government directly or by independent research on their behalf.
103. As to the
impact of the increased night flights on the applicants, the Court notes from
the documents submitted that only limited research had been carried out into
the nature of sleep disturbance and prevention when the 1993 Scheme was put in
place. In particular, the 1992 sleep study, which was prepared as part of the
internal Department of Transport review of the restrictions on night flights,
was limited to sleep disturbance, and made no mention of the problem of sleep
prevention – that is, the difficulties encountered by those who have been woken
in falling asleep again. Further research is now under way, and while the
conclusions may be valuable for future Schemes, the results will be too late to
have any impact on the increase in night noise caused by the 1993 Scheme.
104. In determining
the adequacy of the measures to protect the applicants’ Article 8 rights, the
Court must also have regard to the specific action which was taken to mitigate
night noise nuisance as part of the 1993 Scheme, and to other action which was
likely to alleviate the situation.
105. The Court notes
that, although the 1993 Scheme did not achieve its stated aim of keeping
overall noise levels below those in 1988, it represented an improvement over
the proposals made in the 1993 Consultation Paper, in that no aircraft were
exempt from the night restrictions (that is, even the quietest aircraft had a
rating of 0.5 QC). Further, in the course of the challenges by way of judicial
review to the 1993 Scheme, an overall maximum number of aircraft movements was
set, and the Government did not accede to calls for large quotas and an earlier
end to night quota restrictions.
106. However, the
Court does not accept that these modest steps at improving the night noise
climate are capable of constituting “the measures necessary” to protect the
applicants’ position. In particular, in the absence of any serious attempt to
evaluate the extent or impact of the interferences with the applicants’ sleep
patterns, and generally in the absence of a prior specific and complete study
with the aim of finding the least onerous solution as regards human rights, it
is not possible to agree that in weighing the interferences against the
economic interest of the country – which itself had not been quantified – the
Government struck the right balance in setting up the 1993 Scheme.
107. Having regard
to the foregoing, and despite the margin of appreciation left to the respondent
State, the Court considers that in implementing the 1993 scheme the State
failed to strike a fair balance between the United Kingdom’s economic
well-being and the applicants’ effective enjoyment of their right to respect
for their homes and their private and family lives.
There has accordingly been a
violation of Article 8.
II. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
108. The applicants
contended that judicial review was not an effective remedy in relation to their
rights under Article 8 of the Convention, in breach of Article 13.
Article 13 provides:
“Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
109. The Government
disputed the applicants’ contention that there had been a violation of Article
13.
A. Arguments
of the parties
I. The applicants
110. The applicants
contended that they had no private law rights in relation to excessive night
noise, as a consequence of the statutory exclusion of liability in section 76
of the Civil Aviation Act 1982. They submitted that the limits inherent in an
application for judicial review meant that it was not an effective remedy. They
referred in particular to the fact that the issues arising under Article 8
could not be addressed in an application for judicial review, and that the
arguments which had been raised by the local authorities concerning the
substance of Article 8 in the four applications for judicial review were
rejected on the grounds that they fell outside the scope of the court’s power
of review. They also referred to the high costs involved in bringing an
application for judicial review.
II. The Government
111. The Government
submitted that the applicants had no arguable claim of a violation of Article 8
and that, accordingly, no issue of entitlement to a remedy under Article 13
arose. Alternatively, they submitted that as the requirements of Article 13 are
less strict than and are absorbed by those of Article 6, and as Article 6 would
have applied had it not been for the exclusion of liability in section 76 of
the 1982 Act, no separate issue arose under Article 13.
112. The Government contended
that, in any event, the remedy of judicial review was available to the
applicants. They referred to the wide margin of discretion available to the
national authorities in relation to the decision to implement the 1993 scheme.
They claimed that judicial review was an effective remedy because, although the
English courts could not substitute their view as to where the appropriate
balance lay between the competing interests concerned, the courts had power to
set aside schemes on a variety of administrative law grounds (for example,
irrationality, unlawfulness or patent unreasonableness). Indeed, the courts had
exercised that power in relation to the 1993 scheme.
The Government contended,
further, that judicial review would have allowed a challenge to be made on the
basis of a failure to take relevant material into account, or the taking into
account of irrelevant material. Finally, they observed that Article 8 was
considered by the Court of Appeal in R. v. Secretary of State for Transport, ex
parte Richmond LBC [1996] 1 Weekly Law Reports, p. 1460, at p. 1481E,
where it was held that the Secretary of State had given adequate reasons and
sufficient justification for his conclusion that it was reasonable, on balance,
to run the risk of diminishing to some degree local people’s ability to sleep
at night because of the other countervailing considerations to which he was, in
1993, willing to give greater weight.
B. The Court’s
assessment
113. Article 13 has
been consistently interpreted by the Court as requiring a remedy in domestic
law only in respect of grievances which can be regarded as “arguable” in terms
of the Convention (see, for example, the Boyle and Rice v. the United Kingdom
judgment of 27 April 1988, Series A no. 131, § 54). In the present case, there
has been a finding of a violation of Article 8, and the complaint under Article
13 must therefore be considered.
114. Section 76 of
the 1982 Act prevents actions in nuisance in respect of excessive noise caused
by aircraft at night. The question which the Court must address is whether
the applicants had a remedy at national level to “enforce the substance of the
Convention rights ... in whatever form they may happen to be secured in the
domestic legal order” (Vilvarajah and Others v. the United Kingdom judgment of
30 October 1991, Series A no. 215, §§ 117 to 127). The scope of the domestic
review in the Vilvarajah case, which concerned immigration, was relatively
broad because of the importance domestic law attached to the matter of physical
integrity. It was on this basis that judicial review was held to comply with
the requirements of Article 13. In contrast, however, in its judgment in the
case of Smith and Grady v. the United Kingdom of 27 September 1999 (§§ 135 to
139, ECHR 1999-VI [Section 3]), the Court concluded that judicial review was
not an effective remedy on the grounds that the domestic courts defined policy
issues so broadly that it was not possible for the applicants to make their
Convention points regarding their rights under Article 8 of the Convention in
the domestic courts.
115. The Court notes
that judicial review proceedings were capable of establishing that the 1993
scheme was unlawful because the gap between Government policy and practice was
too wide (see R. v. Secretary of State for Transport, ex parte Richmond
LBC (No. 2) [1995] Environmental Law Reports p. 390). However, it is clear that
the scope of review by the domestic courts was limited to the classic English public
law concepts, such as irrationality, unlawfulness and patent unreasonableness,
and did not allow consideration of whether the increase in night flights under
the 1993 scheme represented a justifiable limitation on their right to respect
for the private and family lives or the homes of those who live in the vicinity
of Heathrow airport.
116. In these
circumstances, the Court considers that the scope of review by the domestic
courts in the present case was not sufficient to comply with Article 13.
There has therefore been a
violation of Article 13 of the Convention.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
117. Article 41 of
the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damages
118. The applicants
submitted that they had each suffered considerable non-pecuniary damage as a
result of noise caused by night flights and, in particular, the increase in
night flights since 1993. They suggested that an award of 2,000 to 4,000 pounds
sterling (GBP) each would be an appropriate starting point for an award of
non-pecuniary damage.
119. The Government
did not comment on the applicants’ submissions.
120. Having regard
to the accounts given by the applicants of the impact on each of them of the
increase in night flights since 1993, and making its award on an equitable
basis, the Court awards the applicants the sum of GBP 4,000 each in
respect of non-pecuniary damage.
B. Costs and
expenses
121. The applicants
submitted a claim for costs and expenses of the proceedings before the
Commission and the Court in the sum of GBP 153,867.56, plus GBP 24,929.55
value added tax (“VAT”). They submitted that although their application was
almost identical to that made by Mr Glass (the annexes to which were simply
reproduced for the purposes of the present application), they should recover
the cost of preparation of the application because their representative had
represented Mr Glass on a contingency (no-win no-fee) basis, and therefore had
not recovered a fee for the work done on his behalf. They indicated that they
had excluded from their claim costs incurred solely in connection with Mr
Glass’s application, and that they had further reduced the sums claimed by 25%
in order to ensure that there was no element of double recovery.
122. The Government
expressed some doubt as to whether the applicants were in fact liable for the
costs, as the basis for the retention of the applicants’ lawyers was not clear.
In any event, they considered that the rates and the time charged were
excessive, and that the travel expenses were, to a certain extent, not
necessary. They put an appropriate figure for costs at GBP 56,739.44 including
VAT. They subsequently added that they understood that up to GBP 80,000 had
been raised by a pressure group to fund costs.
123. Making its
assessment on an equitable basis, the Court awards the applicants by way of
costs and expenses the global sum of GBP 70,000, including VAT.
C. Default
interest
124. According to
the information available to the Court, the statutory rate of interest
applicable in the United Kingdom at the date of adoption of the present
judgment is 7.5% per annum.
FOR THESE REASONS, THE COURT
1. Holds by five votes to
two that there has been a violation of Article 8 of the Convention;
2. Holds by six votes to
one that there has been a violation of Article 13 of the Convention;
3. Holds by six votes to
one
(a) that the respondent State is
to pay the applicants, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, the
following amounts:
(i) in respect of non-pecuniary
damage, 4,000 (four thousand) pounds sterling each;
(ii) for costs and expenses,
70,000 (seventy thousand) pounds sterling, including any value added tax that
may be chargeable;
(b) that simple interest at an
annual rate of 7.5% shall be payable from the expiry of the above-mentioned
three months until settlement;
4. Dismisses unanimously
the remainder of the applicants’ claim for just satisfaction.
Done in English and notified in
writing on 2 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
S. Dollé J.-P. Costa
Registrar President
In accordance with Article 45 §
2 of the Convention and Rule 74 § 2 of the Rules of Court, the following
opinions are annexed to this judgment:
(a) separate opinion
of Mr Costa;
(b) partly
dissenting opinion of Mrs Greve;
(c) dissenting
opinion of Sir Brian Kerr.
J.-P.C.
S.D.
SEPARATE OPINION OF JUDGE COSTA
(Translation)
On mature reflection, and not
without having hesitated a great deal, I voted in favour of finding that there
had been a violation of Article 8 of the Convention. (I concluded more easily
that there had been a violation of Article 13, so shall confine my comments to
Article 8.)
This case, which gave rise to a
public hearing, is far from easy. On the one hand there is the principle,
established by the Court as early as the Marckx judgment of 13 June 1979, that
the State has positive duties, and that the right to a healthy environment is
included in the concept of the right to respect for private and family life
(see, for example, the Powell and Rayner against the United Kingdom judgment of
21 February 1990, quoted in the instant judgment (see paragraph 95), which also
concerned noise disturbance inflicted on the communities near Heathrow by
aircraft noise). On the other hand there is the margin of appreciation which
must be left to the States in this sphere, particularly as to the choice of
means by which to reduce aircraft noise (see the Powell and Rayner judgment, §
45), and the economic well-being of the country, referred to in Article 8 § 2
of the Convention, which relates to the general interest, a matter towards
which I am personally very sensitive. (I refer in this connection to my
dissenting opinion in the case of Chassagnou against France: judgment of 29
April 1999.)
There were therefore serious
reasons for considering, as did the judges forming the minority, that the
inconvenience caused to the applicant as a result of their proximity to
Heathrow airport was not disproportionate.
It seems to me, however, that
the inconvenience was very substantial and, all in all, excessive. As stated in
paragraphs 10 to 17 of the judgment, the eight applicants lived very near the
runways, and four of them had to move house. They certainly did not do so
merely to satisfy a whim, but because they and their families had been finding
it extremely difficult to bear the noise, and, in particular, to sleep. It
should not be forgotten that, unlike the cases which were the subject of the
Powell and Rayner judgment, and the decisions of the Commission such as
Arrondelle (DR 26, p. 5) or Baggs (DR 44, p. 13), what was at issue here were
night flights, with aeroplanes landing or taking off between 4 a.m. and 6 a.m.
Anyone who has suffered for a long period from noise disturbance such as to
disrupt their sleep (or prevent them from getting back to sleep once awake) is
well aware that the effects of this on the nerves and on one’s physical and
mental well-being are extremely unpleasant and even harmful. Furthermore, again
unlike the earlier cases, the applications lodged by Mrs Hatton and the other
applicants concern the period subsequent to 1993, and the Government have
acknowledged that since 1993 the number of night flights has
substantially increased (see, for example,
the admissibility decision of 16 May 2000, p. 13, and the present
judgment, paragraph 98).
Moreover, the issues raised by
the case do not necessarily boil down to macro economic considerations
requiring radical solutions which would compromise the economic well-being of
the country (or of the airline companies, the airport authorities, or all three
categories at once). In accordance with its positive obligations, could the
State not have explored less drastic solutions, such as subsidies (from the
State or from the Heathrow management authorities) to soundproof the
applicants’ homes? The objection may be raised that they are not the only
residents suffering from the noise and that, consequently, that solution would
have opened the floodgates to multiple requests for subsidies or compensation,
whereupon the macro economy would again be in issue and would subsume the
individual nature of the applications and violations.
That is certainly true, but it
has to be one thing or the other: either the number of potential victims of
night flight noise is limited and the “beneficiaries” of those flights can
compensate them, or it is too high for the level of compensation to be
financially viable for the beneficiaries, whereupon night flights need to be
reviewed in their entirety.
It therefore appears to me
that, having regard to the Court’s case-law on the right to a healthy
environment (see, for example, the Lopez Ostra against Spain judgment of 9
December 1994, or the Guerra against Italy judgment of 19 February 1998),
maintaining night flights at that level meant that the applicants had to pay
too high a price for an economic well-being, of which the real benefit,
moreover, is not apparent from the facts of the case. Unless, of course, it is
felt that the case-law goes too far and overprotects a person’s right to a
sound environment. I do not think so. Since the beginning of the 1970s, the
world has become increasingly aware of the importance of environmental issues
and of their influence on people’s lives. Our Court’s case-law has, moreover,
not been alone in developing along those lines. For example, Article 37 of the
Charter of Fundamental Rights of the European Union of 18 December 2000 is
devoted to the protection of the environment. I would find it regrettable if
the constructive efforts made by our Court were to suffer a setback.
That is why I have finally
subscribed, in the main, to the reasoning of the majority of my colleagues, and
fully to their conclusion.
partly dissenting opinion of judge greve
In the present case I have not
found a violation of Article 8.
In reaching this finding I
share essentially the views expressed by Sir Brian Kerr in his dissenting
opinion relating to Article 8. I am, however, unlike Sir Brian, prepared to
accept the applicants’ allegation that the night flights’ noise did interfere
substantially with their sleep.
In the following I shall limit
myself to elaborating on the main points on which I take a different view from
that of the majority of my colleagues in this case.
Introductory remark
Article 8 §1 reads:
“Everyone has the right to respect for his private and family life,
his home and his correspondence.”
In relation to the notion of
“home”, the essence of the protection under the provision is to secure the
inviolability of one’s home, that is to safeguard private individuals against
arbitrary interference with their homes. The Convention being a living
instrument, the provision has gradually been interpreted to include also
environmental rights. There are limits as to the kind of environmental problems
– pollution in the widest sense of the word – which people will have to accept
before these problems give rise to a violation of Article 8. These
environmental rights are nonetheless of a different character from the core
right not to have one’s home raided without a warrant. Environmental problems
may lead to State responsibility under Article 8 as a consequence of the impact
of planning decisions, and potentially also when a State refrains from
adequately addressing serious environmental problems.
The State’s inquiry into night flights
Unlike the majority, I find no
major shortcomings in the State’s inquiry into night flights’ noise and the
decision-making process used in this case by the authorities in the United
Kingdom. On the contrary, I find that the procedures were reasonable and
adequate.
The margin of appreciation
An interference with the right
to respect for one’s home will infringe Article 8 of the Convention, unless it
is “in accordance with the law”, pursues one or more legitimate aims under
paragraph 2 and is “necessary in a democratic society” to achieve those aims.
In the present case, the main issue turns on whether the latter requirement was
satisfied.
The majority’s understanding of
the margin of appreciation left to the national courts is, in my opinion, in
conflict with the Court’s established case-law.
The standard relied on by the
majority requiring States “to minimise, as far as possible, the interference
with [Article 8] rights, by trying to find alternative solutions and by
generally seeking to achieve their aims in the least onerous way as regards
human rights” (paragraph 97 of the judgment) is, in my opinion, incompatible
with the wide margin of appreciation left by the European Court to Contracting
States in other planning cases.
The general principles in this
respect are laid down in the Buckley v. the United Kingdom judgment (25
September 1996, Reports of Judgments and Decisions 1996-IV, pp.
1291-1293, §§ 74-77), and read:
“As is well established in the Court’s case-law, it is for the
national authorities to make the initial assessment of the ‘necessity’ for an
interference, as regards both the legislative framework and the particular
measure of implementation (see, inter alia and mutatis mutandis,
the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, § 59,
and the Miailhe v. France (no. 1) judgment of 25 February 1993, Series A no.
256-C, p. 89, § 36). Although a margin of appreciation is thereby left to the
national authorities, their decision remains subject to review by the Court for
conformity with the requirements of the Convention.
The scope of this margin of appreciation is not identical in each
case but will vary according to the context (see, inter alia and mutatis
mutandis, the above-mentioned Leander judgment, ibid.). Relevant factors
include the nature of the Convention right in issue, its importance for the
individual and the nature of the activities concerned.
The Court has already had occasion to note that town and country
planning schemes involve the exercise of discretionary judgment in the implementation
of policies adopted in the interest of the community (in the context of Article
6 § 1, see the Bryan judgment cited above, p. 18, § 47; in the context of
Article 1 of Protocol No. 1, see the Sporrong and Lönnroth v. Sweden judgment
of 23 September 1982, Series A no. 52, p. 26, § 69; the Erkner and Hofauer v.
Austria judgment of 23 April 1987, Series A no. 117, pp. 65-66, §§ 74-75
and 78; the Poiss v. Austria judgment of 23 April 1987, Series A no. 117, p.
108, §§ 64-65, and p. 109, § 68; the Allan Jacobsson v. Sweden judgment of 25
October 1989, Series A no. 163, p. 17, § 57, and p. 19, § 63). It is not for
the Court to substitute its own view of what would be the best policy in the
planning sphere or the most appropriate individual measure in planning cases
(see, mutatis mutandis, the Klass and Others v. Germany judgment of 6
September 1978, Series A no. 28, p. 23, § 49). By reason of their direct and
continuous contact with the vital forces of their countries, the national
authorities are in principle better placed than an international court to
evaluate local needs and conditions. In so far as the exercise of discretion
involving a multitude of local factors is inherent in the choice and
implementation of planning policies, the national authorities in principle
enjoy a wide margin of appreciation.”
These principles have most
recently been followed by the Court’s Grand Chamber in its judgments of 18
January 2001 in the cases of Chapman v. the United Kingdom (application no.
27238/95), Beard v. the United Kingdom (application no. 24882/94), Coster v.
the United Kingdom (application no. 24876/94), Lee v. the United Kingdom
(application no. 25289/94) and Jane Smith v. the United Kingdom
(application no. 25154/94); and in the inadmissibility decision of 25 May
2000 by the Court (Fourth Section) in the Noack and Others v. Germany
case (application no. 46346/99). The latter case is of particular interest as
it involved no less than the transfer of an entire village – members of the
Sorbian minority included. The Court (Fourth Section) described the background
to the case as follows:
“The case concerns the transfer – scheduled to take place at the
end of 2002 – of the inhabitants of Horno, a village in the Land of
Brandenburg fifteen kilometres north of the town of Cottbus, near the Polish
border. Horno has a population of 350, approximately a third of whom are from
the Sorbian minority, of Slav origin. The first twelve applicants say that they
are members of the Sorbian minority. [The other applicants were the Domowina,
an association for the protection of Sorbian interests, and the Horno
Protestant community.] Approximately 20,000 Sorbs (Sorben) live in the Land
of Brandenburg. They have their own language and culture. They have their own
customs (sorbisches Brauchtum), which are kept alive by groups
performing Sorbian songs or wearing traditional costumes and by drama
societies, literary circles and drawing classes. The majority of Sorbs are
Protestants.
The inhabitants of Horno are to be transferred to a town some
twenty kilometres away because of an expansion of lignite-mining operations (Braunkohleabbau)
in the area, as the Jänschwalde open-cast lignite mine (Braunkohletagebau)
is just a few kilometres from Horno.”
The Court (Fourth Section) concluded
that the impugned interference, though indisputably painful for the inhabitants
of Horno, was not disproportionate to the legitimate aim pursued (economic
well-being) in view of the margin of appreciation which States are afforded in
this area.
The reasons for a wide margin
of appreciation in planning and environmental cases are in my opinion no less
valid today. In modern society, environmental problems are not discreet and
only of concern to those who may invoke Article 8, given their proximity to the
source of the given problem. One of the functions of planning is, to the extent
possible, to protect people against the negative impact on the environment of,
for instance, and as in casu, the transport infrastructure; another
function is to ensure that no group of people is disproportionately affected by
what is considered necessary to meet the needs of modern urban society. The
amount and complexity of the factual information needed to strike a fair
balance in these respects is more often than not of such a nature that the
European Court will be at a marked disadvantage compared to the national
authorities in terms of acquiring the necessary level of understanding for
appropriate decision-making. Moreover, environmental rights represent a new
generation of human rights. How the balance is to be struck will therefore
affect the rights not only of those close enough to the source of the
environmental problem to invoke Article 8, but also the rights of those members
of the wider public affected by the problem and who must be considered to have
a stake in the balancing exercise.
Furthermore, the general
principle concerning the assessment of facts argues in favour of a wide margin
of appreciation in these cases.
The general principle concerning the assessment
of facts
It is normally not within the
province of the Court to substitute its own assessment of the facts for that of
the domestic courts and, as a general rule, it is for these courts to assess
the evidence before them (see, inter alia, the Klaas v. Germany judgment
of 22 September 1993, Series A no. 269, p. 17, § 29).
The arguments listed above in
favour of a wide margin of appreciation in planning cases also have as a
consequence that the Court ought to be reluctant to substitute its own assessment
of facts in these cases unless there are relatively clear and substantiated
indications that the national authorities have got the facts wrong. In my
opinion, there are no such indications in the present case which would make the
Court a more competent fact-finder than the national authorities. I consider
that the majority moves beyond what appears to me advisable in this respect.
dissenting opinion of sir brian kerr
I regret that I am unable to
agree with my fellow judges in their conclusion that there have been violations
of Articles 8 and Article 13 of the Convention in this case.
Article 8
Article 8 prohibits unjustified
State interference with an individual’s “right to respect for his private ... life
[and] his home”. The opportunity for undisturbed sleep is an important aspect
of one’s private life. The flying of aircraft at night can interfere with the
sleep of those who live in its flight path. It scarcely requires to be said,
however, that, by allowing night flights, (even those which cause sleep
interference) the State is not automatically guilty of an unjustified
interference with the right to respect for private life and home. Before that
conclusion can be reached, a close examination is required of (i) the nature of
the alleged interference, (ii) the State’s inquiry into the effects of night
flights’ noise and (iii) the assessment that the State has made of the
consequences of curtailing night flights.
The nature of the interference
The applicants’ claims that
their sleep has been disturbed have not been subjected to any critical
challenge. The account that they have given in documents submitted to the court
cannot be accepted without reservation, therefore. Nor can the assumption be
made that these accounts are necessarily representative of a general experience
of those who live in the same areas as the applicants. In making an assessment
of whether the State has been guilty of a failure to have respect for the
applicants’ private life and home, it must be borne in mind that the extent of
the claimed disturbance has not been established to any significant degree.
It may be considered that it is
not easy to prove that one’s sleep has been disturbed. This difficulty does not
alone justify the weight given by the Chamber to an alleged absence of
scientific study into the problem. There can be no substitute for a discussion
of the facts of the specific case before the Court. This is after all an
application under Article 34 of the Convention, and not Article 33.
It is relevant that none of the
applicants has been prevented from moving away from the area. None claims that
their house became unsaleable or that they lost value to such an extent that
equivalent property elsewhere was not affordable. This point does not, of
course, deprive the applicants of the status required to claim to be victims of
a violation of the Convention within the meaning of Article 34, but it is
highly material in determining whether, overall, the government’s policy was so
wide-ranging and unreasonable as to render it incompatible with Article 8 of
the Convention. It is well known
that pressure on property prices around
London is so great that they are not seriously affected by aircraft noise. In
such circumstances, those who claim sleep disturbance from night flying have a
genuine choice as to whether to remain or to move elsewhere.
Modern life is beset with
inconveniences. It is an inevitable incident of our changing world that land
use plans change and that those changes have an impact on the lives of
individuals. From time to time motorways are extended, roads are re-routed or
public buildings are erected near private property. Those who are directly
affected by such developments are naturally most likely to oppose them. So it
is with night flights. But the mere fact that one’s private life is interfered
with by such developments is not enough to attract the protection of Article 8.
It must be demonstrated that, in trying to balance the individual’s rights and
society’s needs and interests, the State has not afforded the rights enshrined
in that provision the requisite respect. In addressing that question, the
possibility of removing oneself from the source of the inconvenience cannot be
ignored.
Having considered all the
available evidence, I have concluded that it has not been established that
there was a significant interference with the applicants’ right to private
life.
The State’s inquiry into night flights’
noise
The majority has concluded that
the State did not conduct a sufficient inquiry into the effects of night flying
on the sleep of those affected by it (paragraph 106). Since the
introduction of the 1993 scheme, however, the Government has taken the
following steps, among others, (i) consulted on revised proposals in October
and November 1993; (ii) commissioned a study by ANMAC in May 1994; (iii) issued
a Consultation paper in March 1995 and a supplement in June 1995; (iv)
initiated a trial of modified procedures for early morning landings and
published the results in November 1998; (v) commissioned a study to be carried
out by the National Physical Laboratory in December 1997; (vi) engaged in a two
stage consultation exercise in 1998, publishing the second stage in November of
that year; (vii) as a result of the consultation exercise, introduced a new
scheme in 1999, and (viii) published a report in March 2000 identifying a
number of issues for further possible research.
I cannot subscribe to the view
that the Government have been unwarrantably inactive in this area, therefore.
On the contrary, the amount of research that has been conducted into the
problem of night noise has been substantial, in my opinion. Furthermore, as the
judgment records, (paragraph 64) a series of noise mitigation and abatement
measures is in place at Heathrow airport, in addition to restrictions on night
flights. The DETR and the management of Heathrow airport conduct continuous and
detailed monitoring of the restrictions of night flights. These measures betoken
a concern that the right to a private life should not be unduly interfered with
rather than a failure to accord that right the requisite respect.
The consequences of curtailing night
flights
The majority has concluded that
“mere reference to the economic well-being of the country is not sufficient to
outweigh the rights of others”. I agree. In the present case, however, it is
surely misconceived to characterise the case made on behalf of the United
Kingdom as a “mere reference” to the economic well being of the country. As the
judgment has acknowledged, (paragraph 90) the United Kingdom Government
had available to them detailed information regarding the economic importance of
night flights at Heathrow. The applicants have challenged the accuracy and validity
of that information. In particular, they claim that the Oxford Economic
Forecasting report did not consider separately the economic importance of night
flights. I am not persuaded, however, that it is possible to segregate the
night flights factor in the way suggested by the applicants and I do not
consider that it has been shown that the economic effects of curtailing night
flights will be other than substantial.
The importance to the national
economy of the aircraft industry as a whole, and of Heathrow airport in
particular, is self-evident. As to the specific role of night flights at
Heathrow, some 3% of air movements take place between 23.30 and 6.30; flights
between 6.00 and 6.30 are almost exclusively long haul arrivals. British
Airways have informed the Court that this sector of the market is particularly
important for them for a number of reasons – customer preference, the need to
use aircraft as intensively as possible and the lack of runway and terminal
capacity at other times – and there is every reason why the same should apply
to other airlines. It is, in my view, beyond plausible dispute that night
flights form part of that national economic interest. The preponderance of the
evidence available to the Court strongly favours the conclusion that there will
be considerable adverse effect to the economy if night flights are curtailed.
Striking the balance
In reaching the conclusion that
the economic well-being of the country did not outweigh the rights of the
applicants, the majority referred to the Lopez Ostra case in which the Court
found State responsibility for nuisances created by a waste-treatment plant. It
has been pointed out that, notwithstanding the undoubted economic interest for
the national economy of the tanneries concerned in Lopez Ostra, the Court
looked in considerable detail at “whether the national authorities took the
measures necessary for protecting the applicant’s right to respect for her home
and for her private and family life...” I would again respectfully agree that
this is an entirely appropriate approach. But the fact that the interest for
the national economy of the enterprise concerned did not outweigh the State’s
obligation to have respect for the applicant’s rights under Article 8 in the
Lopez Ostra case, does not diminish the potential importance of that factor in
other cases in considering whether, if there has been interference with the
right to respect for private life and home, that interference may be said to be
unjustified. Each case must be considered on its individual merits. In some
cases, the economic argument may be pivotal where the interference is not
substantial; in others it may be weak, particularly where the interference is
considerable. The case of Lopez Ostra does not purport to lay down a general
principle that the interest for the national economy is a factor which is to be
disregarded or that it must always yield to the need to protect the right to
respect for private and home life, especially if the interference with those
rights is peripheral or illusory.
Moreover, I would point to a
number of significant differences between that case and the present. In Lopez
Ostra, the domestic courts accepted that it had been established that the
operation of the waste treatment plant created nuisances that “impaired the
quality of life of those living in the plant’s vicinity” (p. 54, § 50). In the
present case, the applicants were not parties in the only court proceedings in
the domestic courts. No domestic court has evaluated the actual impact on their
lives of the night flights complained of, therefore. Moreover, such proceedings
as have been undertaken have concerned procedural aspects of the policy-making
process rather than the assessment of any actual nuisance.
By contrast, the
waste-treatment plant at issue in Lopez Ostra had started to operate recently
(it was built in 1988), was patently illegal in that it was operating without
the necessary licences (p. 43, § 8), and the authorities (in re-housing
residents, p. 53, § 53) and the courts (p. 44, § 11) accepted that the
operation caused actual nuisance. In the present case, Heathrow had been a
major international airport long before any of the applicants took up residence
at the addresses where they lived when the application was introduced, none of
the night flights has been established to be illegal, and the authorities have
never taken any measures specific to the applicants.
The majority decision does not
address these issues. Rather, it relies on what appears to be a wholly new test
for the application of Article 8 in proclaiming that States are required “to
minimise, as far as possible, the interference with [Article 8] rights, by
trying to find alternative solutions and by generally seeking to achieve their
aims in the least onerous way as regards human rights” (paragraph 97). I am not
aware of any other Convention case in which such a test has been applied.
Indeed, it is difficult to see how it can be reconciled with the principle that
States should have a margin of appreciation in devising measures to strike the
proper balance between respect for Article 8 rights and the interests of the
community as a whole. This margin of appreciation was expressly acknowledged in
the Lopez Ostra case (p. 54, § 51; p. 56, § 58). The test enunciated by the
majority denies to States any discretion as to how they wish to address
socio-economic issues, and instead requires that all policy decisions be
dictated by a strict “minimum interference with fundamental rights” rule. Such
a rule can form part of domestic law, and is not out of place in the case-law
of the European Court of Justice, which is itself an essential part of domestic
law for the member States of the European Union. It appears to me to be in
conflict with the essential subsidiarity of the Convention system1,
however, and cannot therefore be appropriate to the present case.
Looking at the balance that has
to be struck between competing interests (the cases are cited at paragraph 96
of the judgment), one evidently must bear in mind all the factors in a case.
The Chamber sets against an increase in permitted levels of night noise from
1993 the following factors: an absence of scientific and/or independent
information on the economic interest in night flights (paragraphs 100-102); a
limited amount of research as to sleep disturbance and prevention (paragraph
103), and specific action taken to mitigate night noise (paragraph 105).
Requiring, as the Chamber in effect does, specific research into the extent of
the obvious seems to me to be placing a very substantial, and retroactive,
burden on the Government.
A further point to be
considered in striking the balance between the various interests is that the
applicants are challenging not a specific decision which affected them, but a
macro-economic policy. It is open to the Court to consider the effect of
general policies or laws on individuals, but it must be aware that to make an
assessment of a general policy on the basis of a specific case is an exercise
that is fraught with difficulty.
Article 8 § 2 includes in the
list of justifications for an interference with Article 8 § 1 rights “the rights
of others”. In a case involving night flights, the rights and freedoms of air
carriers and of passengers must be brought into the equation. It is difficult
to envisage how the Government may do so in any meaningful way if they are
obliged “to minimise, as far as possible, the interference with [Article 8]
rights, by trying to find alternative solutions and by generally seeking to
achieve their aims in the least onerous way as regards human rights”.
In performing the balancing
exercise under Article 8 in this case, one should also consider the
consequences of a finding that there has been a violation. The mere fact that a
finding of a violation in a particular case might give rise to a large number
of applications is not a reason to shirk from that finding. If Convention
standards are not met in an individual case, it is the role of the Court to say
so, regardless of how many others are in the same position. But when, as here,
a substantial proportion of the population of south London is in a similar position
to the applicants, the Court must consider whether the proper place for a
discussion of the particular policy is in Strasbourg, or whether the issue
should not be left to the domestic political sphere.
It will be apparent from the
above that I consider that there are so many factors weighing against the
applicants, and so few in their favour, that I cannot subscribe to a conclusion
that the balance required by Article 8 was not struck in this case.
Article 13
I have concluded that there was
no violation under Article 8. As the majority have pointed out, Article 13 has
been consistently interpreted by the Court as requiring a remedy in domestic
law only in respect of grievances that can be regarded as “arguable” in terms
of the Convention. I take the view that the Article 8 claims must so clearly be
decided in the Government’s favour, that they cannot be considered to be
“arguable”. Therefore, I must also conclude that there has not been a violation
of Article 13.
Had I concluded that the Article
8 claim was arguable, I would still have had doubts as to whether there was a
violation of Article 13. The English courts recognise that the intensity of
review in a public law case will depend on the subject matter (R (Mahmood) v.
Secretary of State for the Home Department [2001] 1 WLR 840, at page 847,
approved by Lord Steyn in R v. Secretary of State of the Home Department, ex
parte Daly [2001] 3 All ER 433 at page 477). While this Chamber in its
Smith and Grady judgment found that judicial review did not satisfy the
requirements of Article 13, that case involved matters of an intensely personal
nature for the applicants which put it clearly within the scope of Article 8,
and the national security considerations reduced the scope of the review. The present
case is different in that the interference with the applicants’ right to
respect for their Article 8 rights is, as I have outlined above, difficult
to define. In these circumstances, I consider that the possibility of a
judicial review of the Minister’s policy by way of a challenge to the
reasonableness, lawfulness and arbitrariness of the policy is precisely the
sort of remedy Article 13 envisages in cases involving not a specific decision,
or a decision directly affecting an individual, but a challenge to a general
policy on night flights.
1 See, for example, the Handyside v. the United Kingdom
judgment of 7 December 1976, Series A no. 24, % 48 and Z. and Others v. the
United Kingdom [GC], no. 29392/95, § 103, ECHR 2001.