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Information Note on the Court’s case-law 55

July 2003

Hatton and Others v. the United Kingdom [GC] - 36022/97

Judgment 8.7.2003 [GC]

Article 8

Article 8-1

Respect for private life

Noise nuisance from night flights: no violation

Facts : The applicants, who all live or lived in the vicinity of Heathrow airport, complain that from 1993 the level of noise from aircraft taking off and landing during the night incr eased substantially, as a result of which they and their families experienced considerable sleep disturbance. Prior to 1993, night flights at Heathrow had been regulated by a limitation on the number of take-offs and landings. However, a study published in 1992 in the context of a government review of restrictions on night flights had found that very few people were at risk of substantial sleep disturbance. The Government had then published a Consultation Paper, in response to which a considerable number of responses from airlines and trade associations with an interest in air travel had emphasised the economic importance of night flights. In 1993, a quota system was introduced with the stated aim of reducing noise at three London airports, including Heathro w. Under the scheme, each type of aircraft was assigned a “quota count” depending on its noise level and aircraft movements had to be kept within the permitted maximum number of points, the aim being to encourage the use of quieter aircraft. Additional res trictions applied during the “night quota period” between 11.30 p.m. and 6 a.m. In a supplement to a further Consultation Paper published in 1995, it was stated that the scheme allowed more noise than had been experienced in 1988, contrary to Government po licy, but after a further review of reports on aircraft noise and sleep disturbance the scheme was kept in force. In judicial review proceedings brought by several local authorities, the Court of Appeal considered that adequate reasons and sufficient justi fication had been given for the conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree the ability of local people to sleep at night, because of the other countervailing considerations. The House of Lords refused leave to appeal.

Law : Article 8 – In a case involving State decisions affecting environmental issues, there were two aspects to the inquiry to be carried out by the Court: firstly, an assessment of the merits of the decision to ensure its compatibility with Art icle 8 and secondly, scrutiny of the decision-making process to ensure that due weight had been accorded to the individual’s interests. In relation to the substantive aspect, the State had to be allowed a wide margin of appreciation and in the present case the conflicting views of the parties as to the extent of that margin could be reconciled only by reference to the context of the particular case. In connection with the procedural element, the Court had to consider all the procedural aspects, including th e type of policy or decision involved, the extent to which the views of individuals were taken into account and the procedural safeguards available.

The Court had no doubt that the implementation of the 1993 scheme was susceptible of adversely affecting th e quality of the applicants’ private lives and the scope for their enjoyment of the amenities of their homes and thus their rights under Article 8. While the applicants had not submitted any evidence in support of the degree of discomfort suffered, the Gov ernment admitted, and it was evident from the 1992 sleep study, that sensitivity to noise included a subjective element, with a small minority of people being more susceptible to sleep disturbance. The Court could not, therefore, accept that the applicants had not been considerably affected.

It was clear that the disturbances were not caused by State organs but emanated from the activities of private operators. It might be argued that the 1993 scheme constituted a direct interference by the State but the St ate’s responsibility in environmental issues might also arise from a failure to regulate private industry in a manner securing proper respect for rights under Article 8. Since broadly similar principles apply, it was not necessary to decide into which cate gory the present case fell, the question being whether a fair balance had been struck between the competing interests of the individuals and of the community as a whole.

The applicants did not claim that the policy was unlawful or that any flights had brea ched the applicable regulations. Moreover, it was legitimate for the Government to take the economic interests of the country into account in shaping its policy. Environmental protection should be taken into consideration by Governments and by the Court bu t it would not be appropriate for the Court to adopt a special approach in that respect by reference to a special status of environmental human rights. The 1993 scheme was a general measure not specifically addressed to the applicants and while it had obvi ous consequences for them it did not intrude into an aspect of private life in a manner comparable to, for example, criminal measures relating to sexual conduct. Rather, the normal rule applicable to general policy decisions seemed to be pertinent and the Court’s supervisory function was limited to reviewing whether or not a fair balance had been struck. In that respect, the Court could not make any firm findings as to whether the scheme had actually led to a deterioration in the noise climate but it found no indication that the decision to introduce a quota system was as such incompatible with Article 8.

Whether the right balance had been struck in the implementation of the scheme depended on the relative weight to be given to the competing interests and in that context the authorities were entitled to rely on the available statistical data. The very purpo se of the scheme was to keep noise disturbance at an acceptable level and it was also acknowledged that the measures had to be kept under constant review. Moreover, it was reasonable to assume that night flights contributed to a certain extent to the gener al economy. The scheme eventually put in place was stricter than that envisaged in the Consultation Paper and the Government had not only resisted calls for more liberal regulation but had introduced additional restrictions. A further relevant factor was t he availability of measures to mitigate the effects of aircraft noise, a number of which had been taken. Moreover, it was also significant that the individuals had the possibility of moving elsewhere without financial loss, the applicants not having contes ted the Government’s assertion that house prices had not been adversely affected by night noise.

Finally, with regard to the procedural aspect of the case, while a governmental decision-making process concerning complex issues of environmental and economic policy necessarily had to involve appropriate investigations and studies, this did not mean that decisions could only be taken if comprehensive and measurable data were available in relation to each and every aspect of the matter. It was relevant that the Government had consistently monitored the situation and the 1993 scheme in particular had been preceded by a series of investigations and studies. Moreover, the applicants had access to the Consultation Paper and it was open to them to make representation s.

In the circumstances, the authorities had not overstepped their margin of appreciation by failing to strike a fair balance and there had not been any fundamental flaws in the preparation of the 1993 scheme.

Conclusion : no violation (12 votes to 5).

Arti cle 13 – As the complaint under Article 8 had been declared admissible and indeed the Chamber had found a violation in its judgment, it had to be accepted that the claim under Article 8 was an arguable one. While judicial review proceedings were capable of establishing that the 1993 scheme was unlawful, it was 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 at the time a llow consideration of whether the 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 lived in the vicinity of Heathrow airport. In these ci rcumstances, the scope of review was not sufficient to comply with Article 13.

Conclusion : violation (16 votes to 1).

Article 41 – The Court considered that the finding of a violation was in itself sufficient just satisfaction in respect of any non-pecuniary damage. It made an award in respect of costs and expenses.

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