Hatton and others v United Kingdom (Application no. 36022/97)
Grand Chamber, 8 July 2003
The failure of the government to reduce night flights from Heathrow Airport in the interests of the economic well-being of the country did not breach the Article 8 rights of those living beneath the flight path. Taking into account the small number of people afflicted by sleep disturbance, the interference could not be regarded as disproportionate. The applicants had however been denied their right of a remedy under Article 13 since domestic aviation legislation prevented them from pursuing an action for nuisance in the domestic courts.
The facts of this case are set out in the report on the judgment of the Third Section below. Briefly, applicants alleged that Government policy on night flights at Heathrow airport gave rise to a violation of their rights under Article 8 of the Convention and that they were denied an effective domestic remedy for this complaint, contrary to Article 13 of the Convention.
On 7 November 2000 the Chamber delivered its judgment in which it held, by five votes to two, that there had been a violation of Article 8 of the Convention and by, six votes to one, that there had been a violation of Article 13. The Chamber also decided, by six votes to one, to award compensation for non-pecuniary damage of £4,000 for the breach of their human rights.
On 19 December 2001 the Government requested, pursuant to Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. The Panel of the Grand Chamber accepted this request on 27 March 2002.
This case therefore took the unusual form of a de facto appeal by the losing party against a judgment on the merits by the Strasbourg Court; and even more unusually, the appeal panel overturned the original judgment.
Chamber ruling on Article 8 overturned, since the Grand Chamber found no violation. They did not accept the applicants’ argument that the authorities had overstepped their margin of appreciation by failing to strike a fair balance between the right of certain individuals to respect for their private life and home, and the conflicting interests of others and of the community as a whole.
One could readily accept, opined the majority, that there was an economic interest in maintaining a full service to London from distant airports. Whilst it was difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole, taking into account the small number of people apparently afflicted by sleep disurbance caused by the noise, the interference could not be regarded as disproportionate. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) were particularly affected by a general measure, the fact that they could, if they chose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure.
On Article 13 the applicants retained their success achieved below. The Grand Chamber considered that, confronted with a finding by the Chamber that the Article 8 issues were admissible and indeed that there was a violation of that provision, it should accept that the claim under Article 8 was arguable. It therefore was obliged to consider the scope of review by the domestic courts, limited as it was to the classic English public law concepts, such as irrationality, unlawfulness and patent unreasonableness. Since it did not at the time (that is, prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed increase in night flights under the 1993 Scheme represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow airport, the scope of review by the domestic courts in the present case had not been sufficient to comply with Article 13. There had therefore been a violation of Article 13 of the Convention.
COMMENT (July 2003)
The successful outcome of the government’s appeal was generally anticipated in many quarters. Whichever way one looks at this judgment, the conclusion that the Court has opted for a retrograde approach to “environmental rights” is hard to resist.
The reasoning turns on the interpretation of a government's "positive obligations" under the Convention, particularly Article 8. The Court seeks to distinguish the present issue from those at the core of previous environmental cases by stressing that the Hatton claimants could not point to any breach of domestic regulation. The essence of the reasoning can be found in Paragraph 120 in which the Court states that it:
"...notes at the outset that in previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime. Thus, in López Ostra the waste-treatment plant at issue was illegal in that it operated without the necessary licence, and it was eventually closed down (López Ostra judgment, pp. 46, 47, §§ 16-22). In Guerra, too, the violation was founded on an irregular position at the domestic level, as the applicants had been unable to obtain information that the State was under a statutory obligation to provide (Guerra judgment p. 219, §§ 25-27).
This element of domestic irregularity is wholly absent in the present case. The policy on night flights which was set up in 1993 was challenged by the local authorities, and was found, after a certain amount of amendment, to be compatible with domestic law. The applicants do not suggest that the policy (as amended) was in any way unlawful at a domestic level, and indeed they have not exhausted domestic remedies in respect of any such claim. Further, they do not claim that any of the night flights which disturbed their sleep violated the relevant regulations, and again any such claim could have been pursued in the domestic courts under Section 76 (1) of the Civil Aviation Act 1982."
This embattled provision sets out that:
“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 ...”
The Third Section had reached the view that, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others.
The Grand Chamber responded to this with the somewhat startling statement (in the light of all that was said in Guerra and Lopez Ostra) that:
"Environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights."
What do we take this statement to mean? These comment columns have featured the recent case of Katsoulis v Greece in which the kernels of this present anti-environment efflorescence were exposed; there, it will be remembered, the Court concluded that damage caused by industrial development to the natural environment had insufficient impact on the health of neighbouring residents to engage Article 8. So do we take it that the line of cases including Lopez and culminating in Guerra have reached the end of their particular cul de sac?
Not if the strongly worded dissent by Judges Costa, Ress, Turmen Zupancic and Steiner is anything to go by. Read without this dissenting opinion, it might appear from Hatton that environmental rights are now regarded as an embarassing offshoot of the days when such rights seemed so far fetched as to seem positively unthreatening to macro economics, and therefore worth Strasbourg's championship. Not so, say the dissenters, who make a strong case for their argument that the Court should continue to develop environmental rights consistently with other implied rights in the Convention.
As they note at para 2 of their opinion, "In the field of environmental human rights, which was practically unknown in 1950, the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protection against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on. At paragraph 5 they state, more pungently, that
"The Grand Chamber’s judgment in the present case, in so far as it concludes, contrary to the Chamber’s judgment of 2 October 2001, that there was no violation of Article 8, seems to us to deviate from the above developments in the case-law and even to take a step backwards. It gives precedence to economic considerations over basic health conditions in qualifying the applicants’ “sensitivity to noise” as that of a small minority of people (para 118). The trend of playing down such sensitivity – and more specifically concerns about noise and disturbed sleep –, runs counter to the growing concern over environmental issues, all over Europe and the world. A simple comparison of the above-mentioned cases (Arrondelle, Baggs, Powell and Rayner) with the present judgment seems to show that the Court is turning against the current."
The dissenters also courageously tackle the distinction which the Grand Chamber seeks to draw between what one might crudely categorise as the sex cases and the "quiet life" cases, epitomised in the comparison that one is invited to make between Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45), a case which dealt with the sexual intimacy aspect of the applicant’s private life, and the sleep disturbance litigation under consideration. To be fair, the Court did not shy from this inconsistency in its role. It recognised that, in the past, it has been all too ready to reduce the scope of the margin of appreciation "where Government policy in the form of criminal laws interferes with a particularly intimate aspect of an individual’s private life" (Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52). At para 52 of Dudgeon the Court proclaimed that the present case concerned “ a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8”.
The majority judgment differentiates the Hatton applicants from Dudgeon by contending that their sleep disturbances “did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in the case of Dudgeon to call for an especially narrow scope for the State’s margin of appreciation” (see para 123 of the judgment).
The dissenters’ attack on this distinction is as elegant as it is compelling, and therefore worth quoting in full, from paragraph 10:-
“It is logical that there be an inverse relationship between the importance of the right to privacy in question on the one hand and the permissible intensity of the State’s interference on the other hand. It is also true that sexual intimacy epitomizes the innermost concentric circle of private life where the individual should be left in peace unless he interferes with the rights of others. However, it is not logical to infer from this that the proportionality doctrine of inverse relationship between the importance of the right to privacy and the permissible interference should be limited to sexual intimacy. Other aspects of privacy, such as health, may be just as ‘intimate’ albeit much more vital.
11. Privacy is a heterogeneous prerogative. The specific contours of privacy can be clearly distinguished and perceived only when it is being defended against different kinds of encroachments. Moreover, privacy is an aspect of the person’s general well-being and not necessarily only an end in itself. The intensity of the State’s permissible interference with the privacy of the individual and his or her family should therefore be seen as being in inverse relationship with the damage the interference is likely to cause to his or her mental and physical health. The point, in other words, is not that the sexual life of the couple whose home reverberates with the noise of aircraft engines may be seriously affected. The thrust of our argument is that “health as a state of complete physical, mental and social well-being” is, in the specific circumstances of this case, a precondition to any meaningful privacy, intimacy etc. and cannot be unnaturally separated from it. To maintain otherwise, amounts to a wholly artificial severance of privacy and of general personal well-being. Of course, each case must be decided on its own merits and by taking into account to the totality of its specific circumstances. In this case, however, it is clear that the circles of the protection of health and of the safeguarding of privacy do intersect and do overlap.”
The minority also pick up on the ready acceptance by the Court of the government’s argument that the applicants represent too small a section of the community to matter in terms of the injury they suffer. They point out (as if this needed pointing out) that one of the important functions of human-rights’ protection is to protect ‘small minorities’ whose ‘subjective element’ makes them different from the majority.
See, in the light of this judgment, Jeremy Hyam's article "A Noisy Noise Annoys"
Rosalind English, 1 Crown Office Row
Third Section October 2 2001
The failure of the government to restrict night noise in the proximity of Heathrow Airport meant that it had not struck the balance between economic interests and the applicants' Article 8 rights
All the applicants lived near Heathrow and suffered sleep deprivation as a result of heavy use of the runways during the night. Complications developed out of this sleep deprivation - one of them suffered depression, another developed tinnitus and ear infection as a result of having to wear ear plugs every night. Some of the applicants were driven to sell their homes and move away from the area where they had work, friends and other local connections. The experience of all the applicants tended to be that air traffic increased dramatically between 6 a.m. and 7 a.m as a result of the shortening night quota.
In particular, the present applicants complained largely about the increase in night noise which they say had occurred since the Government altered the restrictions on night noise in 1993.
The history of air noise cases in recent years is detailed and complex. Suffice it to say here that several applications for judicial review had been made challenging the Transport Secretary's efforts to reach some sort of quota system for night flights that would reduce noise without damaging Heathrow's position as leading international airport. There was no point in the applicants taking an ordinary nuisance action against the airport authorities, since the Civil Aviation Act 1982 bans such claims.
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 ..."
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. They also contended, inter alia, 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). 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.
The applicants also contended under Article 13 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.
Complaint under Article 8 upheld. The Court took into account the measures the government had taken in improving the night noise climate, but it did not accept that these modest steps were 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, 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. In the light of the above, 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.
The Court also upheld the complaint under Article 13. The Court accepted that at the time the applicants were raising their complaint in domestic courts, judicial review 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. In these circumstances, the Court considered that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13.
COMMENT (October 7 2001)
This is a very important landmark in the Strasbourg Court's environmental docket. One does not have to delve very far back in the annals of environmental cases to see that the Court used to take a very different approach to the balance that had to be struck between private interests and the public good. In Balmer Schafroth v Switzerland, for instance (1998) 25 EHRR 598 the Court considered the complaints of Swiss nationals who lived five kilometers away from a power station who were objecting to its extension. They complained, under Article 6, that they were deprived of an opportunity to obtain an order from any court or tribunal challenging that extension. Whilst the Court accepted their argument that the new extension might "have serious and irremdiable construction defects,… and that its condition entaield a greater than usual risk of accident", ultimately the Court ruled that Article 6 was not applicable, because "neither the dangers nor the remedies were established with a sufficient degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case law for the right relied upon by the applicants. In the Court's view, the connection between the [decision to extend the power station] and the right invoked by the applicants was too tenous and remote.
As a spirited dissenting minority pointed out, what did the Court want the applicants to do? Wait until they had become thoroughly irradiated?
So Hatton is an important development in the encroachment of environmental rights on the Convention. The Court made the interesting and novel observation that " 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". Environmental lawyers will no doubt pick up that line and run with it. Another interesting throwaway line of the Court in its summing up on Article 8 has important implications for nuisance and other environmental claims in this country: in the course of criticizing the adequacy of the government's efforts to improve the night air noise situation, it failed to provide "a prior specific and complete study with the aim of finding the least onerous solution as regards human rights". In other words, the government had failed to conduct a quasi-environmental impact assessment before scaling up the number of aircraft permitted to land and take off between certain hours at night. It will be no good, in the future, to have the nuisance creating activity in place, and then run studies, consultation papers and so on in order to mitigate the damage it causes; the state - or the entity for which it is responsible, must run a prior study setting out alternative ways of conducting the same activity that creates less of an interference with human rights.
This statement pays scant regard to the state's supposed margin of appreciation in this area. Either states have sovereignty over policy alternatives, or they don't. It may appear that this judgment has moved narrowed states' margin of appreciation where environmental claims are concerned. As a rule, the Court has allowed a wide margin of appreciation where there is a diversity of practices amongst Contracting States and little common ground; conversely, states have very little room to manouevre when there is a common approach to a problem across Europe. This is because in the latter case the Court can strike the balance between conflicting interests in a way that is representative of most of its contracting states. Planning choices and macro economic decisions affecting the environment used to belong to the "wide" side of the divide (see Powell and Rayner v United Kingdom); now, as one of the dissenting judge has suggested, there is much more commonality about environmental rights and as a result courts of international supervision - such as the Strasbourg Court and the European Court of Justice in Strasbourg - have much greater scope for review.
However, going back to the suggested approach by the Court - that governments should assess the less onerous alternatives before choosing to conduct any activity - whether this will make any difference is moot. Already the taxpayer is bearing the burden of a suplusage of public inquiries on rail disasters, airport terminals, abused children etc; whether another wave of inquiries would be welcomed every time a government department proposes to set up or continue up a rights infringing activity is questionable. In any event such an inquiry would not necessarily render such an activity judge-proof, particularly after this judgment. Note that each of the applicants has come away from this judgment £4,000 the richer, and although this is a modest sum in comparison to what a domestic court may award by way of a nuisance action, the sums payable for a successful class action of this order will be astronomical.
One final reflection on Hatton. The government in one of its many consultation papers on air noise said 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.
Some of these claims may seem rather anachronistic now. At the time of writing, there are reports of the complete collapse of Swissair, and Sabena has filed for bankruptcy. The crisis in the airline business has already led to calls for state aid. The public is prepared to put up with a certain amount of discomfort caused by industries that make large revenue contributions to the country and boost the economy by providing jobs. But if the rights to a healthy and peaceful home environment implied by Article 8 are increasingly threatened by an industry that is being propped up by the taxpayer, the public may not be so sanguine about it. Maybe the Strasbourg Court has produced a timely judgment.
Rosalind English, 1 Crown Office Row