AS TO THE ADMISSIBILITY OF

                      Application No. 28485/95

                      by Gordon GLASS

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 28 September 1994

by Gordon GLASS against the United Kingdom and registered on

9 September 1995 under file No. 28485/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     7 February 1997 and the observations in reply submitted by the

     applicant on 25 April 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1949. He lives in Bath

and is represented before the Commission by Mr. R. Buxton, an

environmental lawyer who practices in Cambridge. The facts of the

application, as submitted by the parties, may be summarised as follows.

A.   The specific circumstances of the case

     The applicant bought a house in Kew, in the London Borough of

Richmond upon Thames in 1986. At the time, he did not perceive noise

from Heathrow Airport, about 5 - 6 miles away, as a problem.

     According to the applicant, there was a considerable increase in

flights, and in particular in night flights. The applicant ascribes the

increase to a series of administrative decisions on the part of various

authorities, and to a growth in air traffic which has affected flight

patterns. The night is generally free of aircraft noise for about

5 hours, although the period has been as short as 2 hours. After the

first aircraft, at about 4.30 a.m., there is a flight approximately

every 15 - 20 minutes, and from 5.50 a.m. there is a flight

approximately every 90 seconds. This frequency continues for most of

the day and possibly to around 1.00 a.m. the next morning.

     The Government do not accept the applicant's information on

flight frequencies as accurate. They consider that the perceived

increase in night flights is probably due to the fact that landings

form a higher proportion of nights than hitherto, and that, because of

the prevailing westerly winds, they usually overfly Kew and Richmond

when landing rather than overflying other areas when taking off. They

state that the suggestion that there are some 40 movements per hour

from 5.50 a.m. is also inaccurate: from a recent reply to a

parliamentary question, the average from 6.00 a.m. to 7.00 a.m. is some

30 movements per hour, and there are few occasions when flights

continue beyond 11.00 p.m. at the frequency suggested by the applicant.

Unless flights are exceptionally delayed, there are about 6 movements

between 11.00 p.m. and midnight.

     In 1995 the applicant moved to what he hoped would be a quieter

part of Richmond, but the applicant's new house, too, was subject to

a large number of flights.

     The applicant entered into correspondence with his local

authority in connection with a decision to suspend the alternation of

runways at Heathrow whilst repair works were carried out at other

runways. The effect of this suspension was to increase traffic passing

over the applicant's house for a period of some six weeks.

     On 13 July 1995, the local authority informed the applicant that

because, in the light of Section 76 (1) of the Civil Aviation Act 1982,

the flight of aircraft could not constitute a nuisance, the council

could not exercise their statutory powers under the Environmental

Protection Act 1990 or other legislation.

     On 24 July 1995 the applicant applied to the local magistrates'

court for a nuisance order against the Civil Aviation Authority under

the Environmental Protection Act 1990. The magistrates' clerk replied

on 25 July 1995 that "Redress [could] not be granted in view of the

exception contained in Section 79 (1) (6) of the [Environmental

Protection Act] 1990 ...".

     In September 1995 the applicant moved from Kew to Bath, where he

had been renting a flat since October 1994.

B.   The relevant domestic law

     Section 76 (1) of the Civil Aviation Act 1982 ("the 1982 Act")

provides, so far as relevant, as follows:

     "No action shall lie in respect of trespass or in respect of

     nuisance, by reason only of the flight of 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 and of any orders

     under Section 62 above have been duly complied with and there has

     been no breach of Section 81 above."

     Air Navigation Orders, made under Section 60 of the 1982 Act,

provide for Orders in Council to be made for the regulation of

aviation. Orders have been made to deal with, amongst other matters,

engine emissions, noise certification and compensation for noise

nuisance. Section 62 of the 1982 Act deals with control of aviation in

time of war or emergency.

     Section 81 provides for an offence of dangerous flying.

     Section 79 (1) of the Environmental Protection Act 1990 defines

"statutory nuisances", and imposes a duty on local authorities to

inspect their areas and to detect and deal with statutory nuisances.

Section 79 (1) (g) includes "noise emitted from premises so as to be

prejudicial to health or a nuisance" within the definition. By virtue

of Section 79 (6), Section 79 (1) (g) "does not apply to noise caused

by aircraft other than model aircraft".

     Section 82 of the Environmental Protection Act 1990 gives

magistrates power to act on a complaint from any person aggrieved by

the existence of a statutory nuisance. Where satisfied that the alleged

nuisance exists, the magistrates "shall make an order ... requiring the

defendant to abate the nuisance ... [and/or] ... prohibiting a

recurrence of the nuisance". The court may also fine the defendant.

COMPLAINTS

     The applicant complains that the noise generated at his home by

aircraft from Heathrow airport, and his inability to do anything about

it, violate the Convention. He alleges a violation of Article 6 of the

Convention, and in his observations in reply (see below) further

expanded his original arguments under Articles 8 and 13 of the

Convention, and under Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 28 September 1994 and

registered on 9 September 1995.

     On 16 October 1996 the Commission decided to communicate the

applicant's complaint concerning his access to court under Article 6

of the Convention to the respondent Government and to declare the

remainder of the application inadmissible.   The Government's written

observations were submitted on 7 February 1997, after an extension of

the time-limit fixed for that purpose. The applicant replied on 25

April 1997.

THE LAW

Convention. He complains that the statutory limitations on bringing an

action in respect of aircraft noise limit his access to court in a

manner incompatible with Article 6 para. 1 (Art. 6-1) of the

Convention. Article 6 (Art. 6) provides, so far as relevant, as follows:

     "1.   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. ..."

     The Government recall that in Powell and Rayner (Eur. Court HR,

Powell and Rayner v. the United Kingdom judgment of 21 February 1990,

Series A no. 172) the Court found that Section 76 (1) of the Civil

Aviation Act 1982 ("the 1982 Act") excludes 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 ..." (p. 16, para. 36). The Court found that

Article 6 (Art. 6) did not apply. The Government further note that, in

connection with the proportionality of Section 76 (1) to the aim being

pursued, the Court found, in the context of Article 8 (Art. 8) of the

Convention, that the limitations on the applicants' access to redress

did not amount to an "arguable claim" to be a victim of a violation of

Article 8 (Art. 8) of the Convention (pp. 18-20, paras. 40-46).

     The Government consider that the Commission should give the same

answers to issues raised in connection with Article 6 (Art. 6) and

Section 76 (1) of the 1982 Act as the Court gave in Powell and Rayner,

and that the issues raised by Section 79 of the Environmental

Protection Act 1990 ("the 1990 Act) are exactly the same, on analysis.

     Even if Article 6 (Art. 6) were to apply to the proceedings which

the applicant attempted to bring (which they do not accept), the

Government consider that the limitations on access to court which are

created by Section 79 of the 1990 Act are compatible with Article 6

(Art. 6) for the same reasons as the Court gave under Article 8

(Art. 8) in the case of Powell and Rayner - that is, the exclusion

pursues and is proportionate to the legitimate aim of securing the safe

and effective regulation of civil aviation, and not hindering the

development of international air transport; problems of aircraft noise

are better dealt with by specific regulatory measures to ensure that

aircraft noise is minimised and a proper balance struck between the

various interests; specific schemes exist which are designed to

ameliorate and compensate for the effects of aircraft noise. The

Government, by way of Annexes to their observations, submit details of

the development of Heathrow and of the principal noise mitigation,

abatement and compensation schemes.

     The applicant claims that the bar to litigation in Section 76 of

the 1982 Act is disproportionate and goes further than necessary to

support a legitimate aim, and that Section 79 of the 1990 Act goes even

further. He points out that a number of the regulatory controls which

the Government say are effective at Heathrow do not apply at all in the

context of general aviation at smaller airfields in the United Kingdom.

He also complains that Article 6 (Art. 6) is violated because there is

no right to a hearing in relation to the establishment or review of the

regulatory controls which the Government say are in place to compensate

for the Section 76 bar. With particular reference to controls on night

flights, the applicant refers to a series of cases brought by the

London Borough of Richmond which challenged the legality of night

flying controls. In three consecutive cases, the Government's actions

were found to be unlawful, and in the final one the Government's case

was accepted (R v. Secretary of State for Transport, ex parte Richmond

upon Thames London Borough Council and others, [1994] 1 All ER 377; the

same (No. 2), [1995] Env. LR 390; the same (No. 3), [1995] Env. LR 409,

and the same (No. 4) [1996] 1 WLR 1460). The applicant claims that the

cases show that the Government exceeded its margin of appreciation in

making decisions over night flying controls, taking decisions without

adequate reasons and in bad faith.

     The applicant also considers that, in the light of the above

series of domestic cases, the view of the Court in Powell and Rayner

should be reconsidered.

     The Commission recalls that Article 6 (Art. 6) of the Convention

only applies where there is a dispute over a "right" which can be said,

at least on arguable grounds, to be recognised under domestic law. The

dispute must be genuine and serious; it may relate not only to the

existence of a right, but also to its scope and the manner of its

exercise, and the outcome of the proceedings must be directly decisive

for the right in question. Finally, the right must be civil in

character (Eur. Court HR, M.S. v. Sweden judgment of 27 August 1997,

Reports 1997-IV, No. 44, para. 47).

     In addition to the above requirements which must be met before

Article 6 (Art. 6) applies, the Convention organs have developed case-

law according to which questions of access to court may arise in

connection with bars to having a determination of an issue, whether

contained in procedural or substantive law (see for example No.

23452/94, Osman and Osman v. the United Kingdom, Comm. Report 1.7.97,

pending before the European Court of Human Rights, and the case-law

referred to there). In that case, the Commission found that the

applicants' claim in negligence was arguably based on an existing right

in domestic law, and that the judicial development of an immunity for

the police amounted to a restriction on their access to court in the

adjudication of their civil claims (para. 123). The Commission then

proceeded to assess whether the limitation was proportionate to the aim

pursued, concluding that it was not.

     In the present case, the applicant's action in statutory nuisance

was prevented by the terms of the statute: statutory nuisance was

defined as "noise emanating from premises" and, for the avoidance of

doubt, "noise caused by aircraft other than model aircraft" was

excluded from the definition of "noise emanating from premises". There

was no question of an action which had commenced being prevented by the

executive (see Nos. 20390/92 and 21322/93, Tinnelly and McElduff v. the

United Kingdom, Comm. Report 8.4.97, pending before the European Court

of Human Rights), nor did the case concern an immunity which had been

developed by the courts (for a case involving an action which was

brought, see the above-mentioned Osman case; for a case in which no

action was in fact brought, see Eur. Court HR, Fayed v. the United

Kingdom judgment of 21 September 1994, Series A no. 294-B). Further,

the present case does not concern a limitation on a general right to

bring proceedings (as in the above-mentioned Osman case, or Dyer v. the

United Kingdom, No. 10475/83, Dec. 9.10.84, D.R. 39, p. 246 at pp. 251-

252).      The Commission therefore concludes that, given the clarity

with which the applicant's proposed action for statutory nuisance was

excluded from the scope of the concept of "statutory nuisance", the

claims asserted by the applicant did not concern a "right" which could

arguably be said to be recognised under the law of the United Kingdom

(cf. Masson and van Zon v. the Netherlands judgment of 28 September

1995, Series A no. 327, p. 20, para. 52; Gustafsson v. Sweden judgment

of 25 April 1996, Reports 1996-II, No. 9, p. 659, para. 66).

     Article 6 (Art. 6) did not therefore apply to the proceedings

which the applicant tried to bring before the magistrates in respect

of statutory nuisance.

     The applicant also complains about the limitations on access to

court created by Section 76 of the 1982 Act. The Commission recalls

that the European Court of Human Rights has already considered this

provision in the above-mentioned case of Powell and Rayner (pp. 15-16,

paras. 34-36). The Court found that to the extent that Section 76

excludes liability in nuisance, Article 6 (Art. 6) does not apply as

the applicants could not claim to have a substantive right to relief.

The Court also noted that the exclusion in Section 76 was not absolute,

and to the extent that the exclusion did not apply, the applicants had

access to the domestic courts.

     Assuming that the applicant is entitled to claim to be a victim

of a violation of Article 6 (Art. 6) in connection with the operation

of Section 76 of the 1982 Act, the Commission finds no reason to depart

from the judgment of the Court in the case of Powell and Rayner.

     Finally, the applicant complains that there is no right to a

hearing in relation to the establishment or review of the regulatory

controls which the Government say are in place to compensate for the

Section 76 bar.

     The Commission recalls that Article 6 (Art. 6) of the Convention

does not necessarily apply to challenges to individual measures with

a tenuous connection with the right asserted (see Eur. Court HR,

Balmer-Schafroth and others v. Switzerland judgment of 26 August 1997,

Reports 1997-IV, No. 43, paras. 30-40), and the Commission considers

that the same applies to challenges to the regulatory controls referred

to by the applicant. In any event, the Commission notes that the

Richmond upon Thames London Borough Council was able to bring

proceedings in which it could make precisely such a challenge, and

there does not appear to be any reason why the applicant, as a person

aggrieved by the allegedly unlawful controls, could not make a similar

challenge himself.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.   The applicant, in his observations in reply, also repeats and

expands the complaints he made in his original application.

     The Commission recalls that in its Partial Decision of 16 October

1996, it declared inadmissible the applicant's complaints concerning

the noise created at his house by aircraft using Heathrow airport.

     The Commission recalls that by virtue of Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention, it may not deal with any petition

which is substantially the same as a matter which has already been

examined by it. Whilst the applicant brings further legal argument in

support of those parts of the application which have been declared

inadmissible, the factual basis for those arguments - the noise

generated at the applicant's house by aircraft using Heathrow airport -

is the same.

     These complaints may not therefore be considered by virtue of

Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                              J. LIDDY

        Secretary                                 President

   to the First Chamber                      of the First Chamber