In the case of Powell and Rayner,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") and the relevant provisions
of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal,
President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Sir Vincent Evans,
Mr A. Spielmann,
Mrs E. Palm,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar,
and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 30 September 1989 and 24 January 1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 16 March 1989,
within the three-month period laid down by Article 32 § 1 and Article 47 (art.
32-1, art. 47) of the Convention. It originated in an application (no. 9310/81)
against the United Kingdom of Great Britain and Northern Ireland initially
lodged with the Commission under Article 25 (art. 25) of the Convention on 31 December 1980 by the Federation of Heathrow Anti-Noise Groups, which application was
subsequently continued by Richard John Powell and Michael Anthony Rayner, who
are British citizens.
The Commission’s request referred to Articles 44 and 48 (art.
44, art. 48) and to the declaration whereby the United Kingdom recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the
request was to obtain a decision from the Court as to whether the facts of the
case disclosed a breach by the respondent State of its obligations under
Article 13 (art. 13) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
§ 3 (d) of the Rules of Court, the applicants stated that they wished to take
part in the proceedings and sought leave, which was granted by the President of
the Court, to be represented by a university law lecturer from the United
Kingdom (Rule 30).
3. The Chamber to be constituted included ex officio Sir
Vincent Evans, the elected judge of British nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 §
3 (b)). On 30 March 1989, in the presence of the Registrar, the President drew
by lot the names of the other five members, namely Mr Thór Vilhjálmsson, Mr L.-E.
Pettiti, Mr J. A. Carrillo Salcedo, Mr N. Valticos and Mrs E. Palm (Article 43
in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr Carrillo
Salcedo and Mr Valticos, being unable to take part in the consideration of the
case, were replaced by Mr A. Spielmann and Mr J. Pinheiro Farinha, substitute
judges; Mr Pinheiro Farinha was in turn replaced by Mr I. Foighel (Rules 22 § 1
and 24 § 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Deputy Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the representative of the
applicants on the need for a written procedure (Rule 37 § 1). In accordance
with the order made in consequence, the registry received the applicants’
memorial on 16 June 1989 and the Government’s memorial on 23 June 1989.
In a letter of 18 August 1989, the Secretary to the Commission
informed the Registrar that the Delegate would submit his observations at the
hearing.
5. Having consulted, through the Deputy Registrar, those who
would be appearing before the Court, the President directed that the oral
proceedings should open on 27 September 1989 (Rule 38).
6. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
- for the Government
Mr M. C. Wood, Legal
Counsellor,
Foreign and Commonwealth Office,
Agent,
Mr N. Bratza, Q.C., Counsel,
Ms P. Henderson, Department
of Transport,
Mr E. Neve, Department of
Transport, Advisers;
- for the Commission
Mr E. Busuttil, Delegate;
- for the applicants
Ms F. Hampson, Lecturer in
Law
at the University of Essex, Counsel.
The Court heard addresses by Mr Bratza for the Government, by
Mr Busuttil for the Commission and by Ms Hampson for the applicants, as well as
their replies to its questions.
7. Various documents were lodged at the registry by the
Government and the applicants on the day of the hearing and on different dates
between 10 October 1989 and 4 January 1990.
AS TO THE FACTS
A. Background
8. The first applicant, Richard John Powell, is a director of
a mining concern and lives with his family at Esher, Surrey, in a house which
he bought in 1957. The property is situated several miles from Heathrow Airport, London. Since 1972 it has lain under a flight departure route from
Heathrow in operation for about one third of the year, usually during the
summer months. Following objections to the level of noise disturbance, the
route was divided into two sections in 1975. At least until 1984 Mr Powell’s
home fell just within the 35 Noise and Number Index (NNI) contour, which is
considered to be a low noise-annoyance rating (see paragraph 10 below). About
half a million other people live within this contour area. Since 1984 the house
has been within a lower NNI contour.
9. The second applicant, Michael Anthony Rayner, farms
together with other members of his family lands situated in Colnbrook, Berkshire, which have been in his family for some generations. He lives in a bungalow at
Colnbrook acquired by his family as part of its land-holding in 1952. The
applicant took up residence there in 1961 on the occasion of his marriage. The
bungalow is situated about one and a third miles west of, and in a direct line
with, Heathrow’s northern runway. It is regularly overflown during the day and
to a limited extent at night. It falls within a 60 NNI contour, which is
regarded as an area of high noise-annoyance for residents. According to the
statistics supplied by the Government, the average height of arriving aircraft
over Mr Rayner’s property is 450 feet and the average height of departing
aircraft varies between 1,235 and 2,365 feet according to aircraft type. About
6,500 people around Heathrow Airport experience a noise exposure equal to or
greater than that suffered by Mr Rayner and his family.
10. The NNI is a long-term average measure of noise exposure
which is used in the United Kingdom to assess the disturbance from aircraft
noise to communities near airports. It takes account of two features of the
noise, namely the average noisiness and the number of aircraft heard during an
average summer day. The flights which determine the NNI at any point on the
ground are those which take place between 06.00 and 18.00 hours Greenwich Mean
Time during the three busy summer months of mid-June to mid-September and which
make a peak noise level exceeding 80 perceived noise decibels (PNdB) at that
point. The purpose of the NNI is to represent community reaction to the level
of aircraft noise so as to guide planning, development and noise control. Thus,
the NNI is amongst the criteria applied in planning controls, so that land
within the 35 to 39 NNI contours may be used for residential development,
planning permission not being refused on noise grounds alone. However, land
within the 40 to 50 NNI contours (moderate noise-annoyance zone) will not be
given over to development, except for the infilling of existing built-up areas
on condition that appropriate sound insulation is used. No development
whatsoever is permitted within the 60 NNI and over contours (high
noise-annoyance zone). It is to be noted that the NNI calculation reflects a
logarithmic element in the PNdB scale, which has the result that every increase
of 10 in that scale represents approximately a doubling of the loudness.
B. The growth of Heathrow Airport
11. Heathrow Airport was formally opened in May 1946. In 1952
the first scheduled air services using jet airliners were inaugurated. Three
terminals were opened in 1955, 1961 and 1968. After a public inquiry which
lasted for 24 weeks and heard 125 witnesses, a fourth terminal was opened in
1986. As regards future expansion, the Government’s policy, as stated in the 1985
"Airports Policy" White Paper, is that they are "not prepared to
make any commitments at this stage on the question of a fifth terminal at
Heathrow but will keep the matter under review" (Command Paper, Cmnd 9542,
paragraph 5.19).
12. Heathrow is one of the busiest international airports in
the world. The Airport handled 3 million passengers in 1956, over one million
passengers during the one month of July 1963, 22.4 million passengers on
international routes and 4.4 million passengers on domestic routes in 1973, and
37.5 million passengers on international routes and 6.8 million passengers on
domestic routes in 1988. There has been a corresponding increase in aircraft
movements over the years. Over 22% of passengers use the airport as an
interchange point. It is currently used by over 70 airlines and serves 200
destinations worldwide. It is the United Kingdom’s leading port in terms of
visible trade and in 1988 handled cargo valued at £26.3 billion. Heathrow Airport contributes around £200 million to the United Kingdom’s balance of
payments, provides direct employment for some 48,600 persons, in addition to
the substantial number of workers employed locally in servicing the industry,
and pays over £16 million in local rates and rents.
C. Compensation measures
13. Compensation for the loss of value of houses and land as
a result of airport noise is provided for by the Land Compensation Act 1973. However,
such compensation is payable only in respect of new or altered public works
first brought into use after 16 October 1969. Intensification of an existing
use is, for reasons of principle and practice, not compensatable. Mr Powell and
Mr Rayner would have no entitlement to compensation under this Act, there being
no relevant new or altered development in the case of Heathrow Airport.
14. The British Airports Authority, being a public statutory
body, did not have power to acquire property near an airport unless it could
show that the acquisition of the property was necessary for the proper
performance of its function. In December 1986, after the completion of the
fourth terminal (see paragraph 11 above) and privatisation of the Authority,
the successor company to the Authority announced a scheme for the purchase of
noise-blighted properties close to Heathrow Airport. This scheme provided for
purchase by the company of property severely affected by aircraft noise at
Heathrow (within the 65 NNI contour) where the owner had acquired the property
before 17 October 1969 and wished to sell but could not do so except at a
deflated price. Claims had to be made between 1 January 1987 and 31 December 1988. By virtue of the contour limitation the applicants’ properties were
excluded from the scheme.
15. An action will lie at common law for nuisance in respect
of an activity which unreasonably interferes with the use and enjoyment of
land, for example an activity causing annoyance through noise. If liability is
established, damages may be awarded or, in certain circumstances, an injunction
granted. However, the Noise Abatement Act 1960 specifically exempts aircraft
noise from its protection. The liability of aircraft operators is further
limited by section 76(1) of the Civil Aviation Act 1982, which reads:
"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
flights, so long as the provisions of any Air Navigation Order or of any orders
under section 62 above have been duly complied with and there has been no
breach of section 81 below."
Section 76(2) of the 1982 Act in turn provides for strict
liability - that is, liability without proof of intention or negligence - where
material loss or damage to any person or property on land or water is caused
by, inter alia, an aircraft in flight or an object falling from an aircraft. Provisions
equivalent to section 76 existed in earlier civil aviation legislation (for
example, section 9 of the Air Navigation Act 1920 and section 40 of the Civil
Aviation Act 1949).
Section 76 is comparable to Article 1 of the Rome Convention of
1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface, which
reads:
"Any person who suffers damage on the surface shall, upon
proof only that the damage was caused by an aircraft in flight or by any person
or thing falling therefrom, be entitled to compensation as provided by this
Convention. Nevertheless there shall be no right to compensation if the damage
is not a direct consequence of the incident giving rise thereto, or if the
damage results from the mere fact of passage of the aircraft through the
airspace in conformity with existing air traffic regulations." (United
Nations Treaty Series, 1958, vol. 310, no. 4493, p. 182)
As at January 1990, this Convention had been ratified by
thirty-six States, including four members of the Council of Europe, namely Belgium, Italy, Luxembourg and Spain but not the United Kingdom.
16. Section 76(1) of the 1982 Act does not exclude all
liability on the part of aircraft operators for trespass and nuisance caused by
aircraft in flight. In the first place, the exemption applies only in respect
of aircraft flying at a reasonable height above the ground. What is reasonable
is a question of fact depending on all relevant circumstances. Secondly, for
the exemption to apply there must be compliance with the statutory provisions
referred to in section 76(1). In practice this means the Air Navigation Order
1985 as amended, the Air Navigation (General) Regulations 1981 as amended, the
Rules of the Air and Air Traffic Control Regulations 1985 as amended and, of
especial importance in this connection, the Air Navigation (Noise Certification)
Order 1987 (and the corresponding provisions of earlier orders and regulations
applicable from time to time). Thus, if, for example, an aircraft flies in a
manner which is not in accordance with the applicable regulations or takes off
or lands in contravention of the Air Navigation (Noise Certification) Order,
its operator will not be entitled to rely upon section 76 as a defence to any
action for trespass or nuisance.
D. Noise abatement measures
17. The main forum for international co-operation seeking to
make aircraft quieter is the International Civil Aviation Organisation (ICAO). The
broad thrust of ICAO’s work has been towards the development of a series of
standards, leading to the phasing out of aircraft unable to meet them. These
standards are not operative within the ICAO member States unless and until they
are given effect in national legislation. In the United Kingdom effect is given
to them by means of an Air Navigation (Noise Certification) Order.
Orders of 1970 and 1979 reflected the first ICAO standards
developed concerning subsonic jet aircraft. A 1984 Order gave effect to new
ICAO standards and to regulations based upon recommendations of the European
Civil Aviation Conference. In doing so, the 1984 Order also implemented the
requirements of the European Community Directives of 1979 and 1983 on
"Limitation of Noise Emission from Subsonic Aircraft". It was,
however, more stringent in its application inasmuch as non-compliant subsonic
jets were banned from the domestic register twelve months earlier than required
by the 1979 Directive. Orders of 1986 and 1987 introduced further ICAO
standards.
18. In structuring its landing charges, Heathrow Airport
Limited has taken account of ICAO noise certification standards to encourage
the use of quieter aircraft.
19. Since 1971 restrictions have been placed on night
movements of jets, with the aim of phasing out night flights of noisier
aircraft. These measures have been adopted in the light of research into the
relationship between aircraft noise and sleep disturbance and after
consultation of all interested parties, including the Federation of Heathrow
Anti-Noise Groups to which the applicants belong.
20. Monitoring of aircraft noise on take-off from Heathrow Airport was first carried out in the early 1960’s. Since 1974 automatic equipment,
consisting of thirteen noise monitoring terminals linked to a central
processing and control unit, has been used. The positioning of these terminals
is designed to protect the first built-up area reached after take-off from
noise levels in excess of the statutory limits of 110 PNdB by day (07.00-23.00
hours local time) and 102 PNdB by night (23.00-07.00 hours local time). In the
event of an infringement of the noise limit, the Airport informs the airline by
letter and sends a copy to the Department of Transport. According to the
Government, the effect of recent bans on non-noise-certificated aircraft has
been to keep the rate of compliance to around 99% by day and 98% by night. The
Secretary of State is empowered by section 78 of the Civil Aviation Act to deny
Heathrow’s facilities to operators who fail to comply with noise abatement
measures, but to date it has not been found necessary to invoke this provision.
On the other hand, night flight quotas have been reduced for infringing
operators.
21. Aircraft taking off from Heathrow Airport are statutorily
required to remain on a small number of specified routes, known as noise
preferential routes. These routes are designed to avoid as far as possible the
major built-up areas.
22. Approach procedures said to result in lower noise levels
in comparison with traditional approach procedures are now standard practice. Furthermore,
minimum height requirements on approach to land as well as on take-off are laid
down in the regulations. In addition, since 1972 a system of regularly
alternating the landing runway has been implemented at Heathrow during westerly
operations, the main objective being to achieve a fair sharing of periods of
relative quiet among the communities of West London affected by noise from
landing aircraft.
23. A helicopter link between Gatwick Airport and Heathrow Airport was introduced in 1978. However, after public inquiries in 1978, 1979,
1983 and 1985, the Secretary of State for Transport gave directions in June
1986 for the operator’s licence to be revoked for environmental reasons.
24. Following earlier schemes in 1966, 1972, and 1975, a
scheme for sound insulation of dwellings was introduced for Heathrow in 1980.
Under this scheme, which cost the British Airports Authority approximately £19
million, over 16,000 house owners or occupiers applied for grants. The scheme
concentrated on those localities that would still be experiencing comparatively
high noise levels in the mid 1980’s and on localities where there is the
greatest degree of disturbance due to aircraft noise at night. Within this area
the amount of grant provided was intended to cover 100% of the reasonable costs
incurred. The boundary was based on the forecast 50 NNI contour for 1985 and
the composite of the 95 PNdB noise footprint for quieter aircraft. 95 PNdB is
the exterior noise level below which current evidence suggests that the average
person in an uninsulated room is unlikely to be awakened. After consultation
and in line with a commitment by the Government to review the boundaries once
the actual noise climate was known, an extension scheme to include additional
areas was brought into operation in April 1989 at an estimated cost of £11.25
million.
In common with other persons living within the 60 NNI contour,
Mr Rayner qualifies for a full noise-insulation grant.
PROCEEDINGS BEFORE THE COMMISSION
25. The application (no. 9310/81) was first lodged with the
Commission on 31 December 1980 by the Federation of Heathrow Anti-Noise Groups.
On 15 March 1984 the Commission rejected the Federation’s complaint, but the
application was continued by Mr Powell and Mr Rayner, together with a third
applicant whose claim has since been settled. In their application, they
complained of excessive noise levels in connection with the operation of Heathrow Airport. They invoked Articles 6 § 1, 8 and 13 (art. 6-1, art. 8, art. 13) of the
Convention and Article 1 of Protocol No. 1 (P1-1). On 17 October 1985 and 16
July 1986 respectively the cases of Mr Powell and Mr Rayner were declared
admissible under Article 13 (art. 13) of the Convention but inadmissible for
the rest.
In its report adopted on 19 January 1989 (Article 31) (art. 31)
the Commission expressed the opinion that there had been a violation of Article
13 (art. 13) of the Convention in relation to Mr Rayner’s claim under Article 8
(art. 8) of the Convention (by twelve votes to four), but not in relation to
any of the other claims (unanimously as regards both applicants’ grievances
under Article 1 of Protocol No. 1 and Article 6 § 1 (P1-1, art. 6-1) of the
Convention, by fifteen votes to one as regards Mr Powell’s grievance under
Article 8 (art. 8) of the Convention). The full text of the Commission’s
opinion and of the dissenting opinion contained in the report is reproduced as
an annex to this judgment.
FINAL SUBMISSIONS MADE TO THE COURT
26. At the public hearing on 27 September 1989 the applicants asked the Court "to find that they have been the victims of a violation
of Articles 6 and 8 (art. 6, art. 8) of the Convention and that the lack of any
effective remedy before a national authority itself violates Article 13 (art.
13) of the Convention".
27. At the hearing the Government maintained the final
conclusions in their memorial, whereby they requested the Court "to decide
and declare that there has been no violation of Article 13 (art. 13) of the
Convention in relation to the claims of either applicant under Article 6 § 1
(art. 6-1) or Article 8 (art. 8) of the Convention or under Article 1 of
Protocol No. 1 (P1-1)". They also submitted that "the applicants’
attempts to re-open their complaints under Articles 6 and 8 (art. 6, art. 8)
are ... entirely misconceived".
AS TO THE LAW
I. SCOPE OF THE CASE BEFORE THE COURT
28. In their application to the Commission Mr Powell and Mr
Rayner alleged violation of their right to respect for their private life and
their home (Article 8 of the Convention) (art. 8), of their right of property
(Article 1 of Protocol No. 1) (P1-1), of their right of access to the courts in
civil matters (Article 6 § 1 of the Convention) (art. 6-1) and of their right
to an effective remedy under domestic law for alleged breaches of the
Convention (Article 13 of the Convention) (art. 13).
According to the terms of its decisions of 17 October 1985 and
16 July 1986 the Commission declared all these complaints inadmissible as being
manifestly ill-founded with the exception of the complaint under Article 13
(art. 13) (see paragraph 25 above). Nonetheless, in the applicants’ submission,
"the Court has jurisdiction to consider the alleged violations of Articles
8 and 6 (art. 8, art. 6), independently of the alleged violation of Article 13
(art. 13)" (see paragraph 9 in fine of the applicants’ memorial). The
issue under Article 1 of Protocol No. 1 (P1-1) was not pursued after the
admissibility stage.
29. The compass of the case before the Court is delimited by
the Commission’s decision on admissibility (see, as the most recent authority,
the Kamasinski judgment of 19 December 1989, Series A no. 168, p. 30, § 59). The
Court is "precluded from reviewing on their merits ... the complaints
rejected as manifestly ill-founded, but empowered to entertain those complaints
which the Commission has declared admissible" (see the Boyle and Rice
judgment of 27 April 1988, Series A no. 131, p. 24, § 54). Whilst the Court is
the master of the characterisation to be given in law to the facts submitted to
its examination, the allegations of violation of Articles 6 and 8 (art. 6, art.
8) constituted separate complaints in their own right and not, as suggested by
the applicants, mere legal submissions or arguments relating to the same facts
as those underlying the allegation of violation of Article 13 (art. 13).
Neither can it be inferred from the "full consideration" devoted by
the Commission to Mr Rayner’s claim under Article 8 (art. 8) that this claim
was in reality declared admissible but rejected on its merits.
Accordingly the Court agrees with the Commission and the
Government that it has no jurisdiction in the present case to rule on the
grievances under Articles 6 and 8 (art. 6, art. 8), independently of their
relevance within the context of Article 13 (art. 13).
II. ALLEGED BREACH OF ARTICLE 13 (art. 13)
30. The applicants contended that in respect of their claims
under Articles 6 § 1 and 8 (art. 6-1, art. 8) of the Convention there was no
domestic remedy as required by Article 13 (art. 13), which provides:
"Everyone whose rights and freedoms as set forth in [the]
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."
A. Introduction
31. Article 13 (art. 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 judgment previously cited, Series A no. 131, p.
23, § 52). In the present case each one of the claims of violation forming the
basis of the applicants’ complaints under Article 13 (art. 13) (the
"substantive" claims) was declared inadmissible by the Commission as
being "manifestly ill-founded" (Article 27 § 2 of the Convention -
see paragraph 25 above) (art. 27-2).
32. The majority of the Commission, however, drew a
distinction between the notions of "manifestly ill-founded" and lack
of "arguability". It was "implicit in the Commission’s
established case-law that the term ‘manifestly ill-founded’ extends further
than the literal meaning of the word ‘manifest’ would suggest at first
reading" (see paragraph 59 of the report). Thus, some serious claims might
give rise to a prima facie issue but, after "full examination" at the
admissibility stage, ultimately be rejected as manifestly ill-founded
notwithstanding their arguable character. The applicants agreed with this
approach.
For the Government and the minority of the Commission, on the
other hand, it was inconsistent for the Commission to reach the conclusion that
a substantive claim of violation was at one and the same time "manifestly
ill-founded" for the purposes of Article 27 § 2 (art. 27-2) and
"arguable" for the purposes of Article 13 (art. 13).
33. As the Court stated in the Boyle and Rice judgment,
"on the ordinary meaning of the words, it is difficult to conceive how a
claim that is ‘manifestly ill-founded’ can nevertheless be ‘arguable’, and vice
versa" (loc. cit., p. 24, § 54). Furthermore, Article 13 and Article 27 §
2 (art. 13, art. 27-2) are concerned, within their respective spheres, with the
availability of remedies for the enforcement of the same Convention rights and
freedoms. The coherence of this dual system of enforcement is at risk of being
undermined if Article 13 (art. 13) is interpreted as requiring national law to
make available an "effective remedy" for a grievance classified under
Article 27 § 2 (art. 27-2) as being so weak as not to warrant examination on
its merits at international level. Whatever threshold the Commission has set in
its case-law for declaring claims "manifestly ill-founded" under
Article 27 § 2 (art. 27-2), in principle it should set the same threshold in
regard to the parallel notion of "arguability" under Article 13 (art.
13).
This does not mean, however, that in the present case the Court
is bound to hold Article 13 (art. 13) inapplicable solely as a result of the
Commission’s decisions of 17 October 1985 and 16 July 1986 declaring the
applicants’ substantive claims under Articles 6 § 1 and 8 (art. 6-1, art. 8) to
be manifestly ill-founded. Whilst those decisions as such are unreviewable, the
Court is competent to take cognisance of all questions of fact and law arising
in the context of the Article 13 (art. 13) complaints duly referred to it,
including the "arguability" or not of each of the substantive claims
(see the Boyle and Rice judgment previously cited, p. 24, § 54). In order to
determine the latter question, the particular facts and the nature of the legal
issues raised must be examined, notably in the light of the Commission’s
admissibility decisions and the reasoning contained therein. In that
connection, as the case of Boyle and Rice and the case of Plattform "Ärzte
für das Leben" show, a claim is not necessarily rendered arguable because,
before rejecting it as inadmissible, the Commission has devoted careful
consideration to it and to its underlying facts (loc. cit., pp. 27-29, §§
68-76, and pp. 30-31, §§ 79-83; and the Plattform "Ärzte für das
Leben" judgment of 21 June 1988, Series A no. 139, pp. 11-13, §§ 28-39).
B. The claim under Article 6 § 1 (art. 6-1)
34. The applicants’ claim under Article 6 § 1 (art. 6-1) was
that their access to the courts for the determination of their "civil
rights and obligations" was unjustifiably denied by section 76(1) of the
Civil Aviation Act 1982, which sets out a statutory bar to bringing an action
in nuisance in respect of aircraft noise (see paragraph 15 above). Article 6 §
1 (art. 6-1), in so far as relevant, provides:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ... by an independent
and impartial tribunal established by law. ..."
35. In its admissibility decisions of 17 October 1985 and 16
July 1986 the Commission rejected the claim under Article 6 § 1 (art. 6-1) as
manifestly ill-founded on the ground that the applicants had no "civil
right" under English law to compensation for unreasonable noise nuisance
caused by aircraft, other than that caused by aircraft flying in breach of
aviation regulations. In its report the Commission further reasoned that no
separate issue of an effective remedy could arise under Article 13 (art. 13)
since its requirements were less strict than and absorbed by those of Article 6
§ 1 (art. 6-1); and that, in so far as the applicants were contesting the
compatibility of section 76(1) with the Convention, Article 13 (art. 13) did
not guarantee a remedy allowing a Contracting State’s legislation to be
challenged as such. It therefore concluded that there had been no violation of
Article 13 (art. 13) under this head.
The applicants replied that the Commission’s admissibility
decisions were based on a misunderstanding of English law. They did have, they
maintained, a right of action at common law to sue in nuisance on account of
unreasonable noise levels, but they were denied a remedy to assert that right
by virtue of section 76(1). The entitlement to bring an action against
individual airline operators for flying in breach of the regulations or at an
unreasonable height, which was left intact by section 76(1), was, in the
applicants’ submission, theoretical and illusory. They contended that the
statutory bar created by section 76(1) infringed the principles enunciated by
the Court in the Ashingdane case (see the judgment of 28 May 1985, Series A no.
93, pp. 24-25, § 57), in that it did not pursue a legitimate aim, it placed a
disproportionate burden on the applicants and, as a result, it destroyed the
very essence of their above-mentioned common-law right.
The Government advanced arguments similar to those of the
Commission. Further and in the alternative they contended that section 76(1)
did not impair the very essence of the applicants’ "right to a court"
under Article 6 § 1 (art. 6-1) or transgress the principle of proportionality.
36. The applicants’ grievance under Article 6 § 1 (art. 6-1)
is in essence directed against the limitation of liability set out in section
76(1) of the Civil Aviation Act 1982. Framed in this way their grievance does
not bring into play Article 6 (art. 6) or Article 13 (art. 13). As the
Commission pointed out in its admissibility decisions, the effect of section
76(1) is to exclude liability in nuisance with regard to the flight of aircraft
in certain circumstances, with the result that the applicants cannot claim to
have a substantive right under English law to obtain relief for exposure to
aircraft noise in those circumstances. To this extent there is no "civil
right" recognised under domestic law to attract the application of Article
6 § 1 (art. 6-1) (see the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70, § 192). In any event Article 13 (art. 13) does not go so far
as to guarantee a remedy allowing a Contracting State’s laws as such to be
challenged before a national authority (ibid., p. 74, § 206).
For the rest no arguable claim of violation of Article 6 § 1
(art. 6-1) can, in the Court’s view, be derived from the applicants’ subsidiary
assertion that the limited entitlement to sue permitted by section 76(1) is illusory.
Access to the domestic courts is available to any person who considers that he
has a cause of action in nuisance under English law. If a question of the
application of section 76(1) arises, it will be for the courts to decide.
Accordingly, there was no violation of Article 13 (art. 13) in
respect of the applicants’ claims under Article 6 § 1 (art. 6-1).
C. The claim under Article 8 (art. 8)
37. The applicants also maintained that, as a result of
excessive noise generated by air traffic in and out of Heathrow Airport, they
had each been victim of an unjustified interference by the United Kingdom with
the right guaranteed to them under Article 8 (art. 8), which provides:
"1. Everyone has the right to respect for his private ...
life [and] his home ....
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of ... the economic
well-being of the country ...."
The applicants disputed the acceptability of the noise levels
permitted by the air traffic regulations and the effectiveness of the
Government’s measures to reduce noise exposure. In their submission, by virtue
of section 76(1) of the Civil Aviation Act 1982 they were forced to endure,
without legal redress, unreasonable disturbance caused by aircraft flying in
accordance with the regulations. Although it was conceded that Mr Powell was
less severely affected than Mr Rayner, both applicants contended that they had
an "arguable" claim of violation of Article 8 (art. 8) for the
purposes of Article 13 (art. 13).
38. In its admissibility decision concerning Mr Powell the
Commission left open whether the noise levels experienced by him (see paragraph
8 above) occasioned an interference with his right to respect for his private
life and his home, within the meaning of paragraph 1 of Article 8 (art. 8-1),
since, as it explained in its report (paragraph 56), it found "ample
justification" in paragraph 2 (art. 8-2) for any resultant limitation on
this right. In the opinion of the Commission, the facts of his case did not
give rise to an arguable claim of breach of Article 8 (art. 8) or,
consequently, to any entitlement to a remedy under Article 13 (art. 13).
On the other hand, the Commission considered the facts of Mr
Rayner’s case to be markedly different. In the words of the Delegate, in its
admissibility decision the Commission found a "clear interference"
which "involved the Government’s positive obligations under Article 8
(art. 8)", albeit an interference justified in a democratic society in the
interests of the economic well-being of the country. It noted in its report
that his home and farm were very close to and in the direct line of one of
Heathrow Airport’s busy runways, that further development was prohibited in
this area, which was classified as a high noise-annoyance zone, and that he had
acquired his home before the major expansion of Heathrow Airport (see
paragraphs 9 and 11 above). The "careful consideration" which had had
to be given to Mr Rayner’s claim under Article 8 (art. 8) at the admissibility
stage and the facts underlying it persuaded the Commission that it was an
arguable claim for the purposes of Article 13 (art. 13). Being of the opinion
that none of the available remedies (as to which, see paragraphs 13 to 16 and
24 above) could provide adequate redress for the claim, it concluded that there
had been a violation of Article 13 (art. 13).
39. The Government submitted in the first place that the
facts disclosed no direct "interference by a public authority" with
the applicants’ right under Article 8 (art. 8), Heathrow Airport and the
aircraft using it not being and never having been owned, controlled or operated
by the Government or any agency of the Government. It was, they contended, not
the negative but the positive obligations of the State under Article 8 (art. 8)
which were in reality in issue; and there was no arguable ground for
establishing any failure on the part of the Government to secure the right of
either applicant to respect for his private life and his home.
In their alternative submission, any interference with either
applicant’s right guaranteed by paragraph 1 of Article 8 (art. 8-1) was, for
the reasons given in the Commission’s admissibility decisions, clearly
justified under paragraph 2 (art. 8-2).
The Government therefore concluded that neither Mr Powell nor
Mr Rayner had made out an arguable claim of violation of Article 8 (art. 8).
40. In each case, albeit to greatly differing degrees, the
quality of the applicant’s private life and the scope for enjoying the
amenities of his home have been adversely affected by the noise generated by
aircraft using Heathrow Airport (see paragraphs 8 to 10 above). Article 8 (art.
8) is therefore a material provision in relation to both Mr Powell and Mr
Rayner.
41. Whether the present case be analysed in terms of a
positive duty on the State to take reasonable and appropriate measures to
secure the applicants’ rights under paragraph 1 of Article 8 (art. 8-1) or in
terms of an "interference by a public authority" to be justified in
accordance with paragraph 2 (art. 8-2), the applicable principles are broadly
similar. 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; and 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 judgment of 17 October 1986, Series A
no. 106, p. 15, § 37, as concerns paragraph 1 (art. 8-1), and the Leander
judgment of 26 March 1987, Series A no. 116, p. 25, § 59, as concerns paragraph
2) (art. 8-2). Furthermore, even in relation to the positive obligations
flowing from the first paragraph of Article 8 (art. 8-1), "in striking
[the required] balance the aims mentioned in the second paragraph (art. 8-2)
may be of a certain relevance" (see the Rees judgment previously cited,
loc. cit.).
42. As the Commission pointed out in its admissibility
decisions, the existence of large international airports, even in densely
populated urban areas, and the increasing use of jet aircraft have without
question become necessary in the interests of a country’s economic well-being. According
to the uncontested figures supplied by the Government, Heathrow Airport, which is one of the busiest airports in the world, occupies a position of central
importance in international trade and communications and in the economy of the United Kingdom (see paragraph 12 above). The applicants themselves conceded that the
operation of a major international airport pursued a legitimate aim and that
the consequential negative impact on the environment could not be entirely
eliminated.
43. A number of measures have been introduced by the
responsible authorities to control, abate and compensate for aircraft noise at
and around Heathrow Airport, including aircraft noise certification,
restrictions on night jet movements, noise monitoring, the introduction of
noise preferential routes, runway alternation, noise-related landing charges,
the revocation of the licence for the Gatwick/Heathrow helicopter link, a noise
insulation grant scheme, and a scheme for the purchase of noise-blighted
properties close to the Airport (see paragraphs 14 and 17-24 above). These
measures, adopted progressively as a result of consultation of the different
interests and people concerned, have taken due account of international
standards established, developments in aircraft technology, and the varying
levels of disturbance suffered by those living around Heathrow Airport.
44. On the other hand, section 76(1) of the Civil Aviation
Act 1982 limits the possibilities of legal redress open to the aggrieved person
(see paragraph 15 above). However, it is to be noted that the exclusion of
liability in nuisance is not absolute: it applies only in respect of aircraft
flying at a reasonable height and in accordance with the relevant regulatory
provisions, including the Air Navigation (Noise Certification) Order 1987 (see
paragraph 16 above).
Since a forerunner of section 76(1) was enacted in 1949,
successive Governments in the United Kingdom have proceeded on the view that
the problems posed by aircraft noise are in general better dealt with by taking
and enforcing specific regulatory measures to ensure that disturbance caused by
aircraft noise is minimised, to the exclusion of having the matter settled by
the case-law of the courts on the general criterion of reasonableness in any
actions for nuisance which might be brought at common law. It is certainly not
for the Commission or the Court to substitute for the assessment of the
national authorities any other assessment of what might be the best policy in
this difficult social and technical sphere. This is an area where the
Contracting States are to be recognised as enjoying a wide margin of
appreciation. It is not without significance that the provisions of section
76(1) are comparable to those of the Rome Convention of 1952 on Damage Caused
by Foreign Aircraft to Third Parties on the Surface (see paragraph 15 above).
45. In view of the foregoing, there is no serious ground for
maintaining that either the policy approach to the problem or the content of
the particular regulatory measures adopted by the United Kingdom authorities
gives rise to violation of Article 8 (art. 8), whether under its positive or
negative head. In forming a judgment as to the proper scope of the noise
abatement measures for aircraft arriving at and departing from Heathrow
Airport, the United Kingdom Government cannot arguably be said to have exceeded
the margin of appreciation afforded to them or upset the fair balance required
to be struck under Article 8 (art. 8). This conclusion applies to Mr Rayner as
much as to Mr Powell, even though Mr Rayner has suffered a much higher level of
disturbance and even though careful consideration was given to his complaint by
the Commission at the admissibility stage.
46. In sum, no arguable claim of violation of Article 8 (art.
8) and, consequently, no entitlement to a remedy under Article 13 (art. 13)
have been made out in relation to either applicant as regards noise caused by
aircraft flying at a reasonable height and in compliance with air traffic
regulations.
In so far as the applicants may also wish to complain of noise
caused by aircraft not satisfying one or other of these conditions, there is no
bar on their bringing an action in nuisance. To this extent they must be
regarded as having an effective remedy available to them.
In conclusion, there has been no violation of Article 13 (art.
13) in respect of the claims of either applicant under Article 8 (art. 8).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that it has no jurisdiction to entertain the
applicants’ complaints under Articles 6 § 1 and 8 (art. 6-1, art. 8);
2. Holds that there has been no violation of Article 13 (art.
13) in respect of either applicant.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 21 February 1990.
Rolf RYSSDAL
President
Marc-André EISSEN
Registrar
