SEPARATE OPINION OF JUDGE COSTA

(Translation)

On mature reflection, and not without having hesitated a great deal, I voted in favour of finding that there had been a violation of Article 8 of the Convention. (I concluded more easily that there had been a violation of Article 13, so shall confine my comments to Article 8.)

This case, which gave rise to a public hearing, is far from easy. On the one hand there is the principle, established by the Court as early as the Marckx judgment of 13 June 1979, that the State has positive duties, and that the right to a healthy environment is included in the concept of the right to respect for private and family life (see, for example, the Powell and Rayner against the United Kingdom judgment of 21 February 1990, quoted in the instant judgment (see paragraph 95), which also concerned noise disturbance inflicted on the communities near Heathrow by aircraft noise). On the other hand there is the margin of appreciation which must be left to the States in this sphere, particularly as to the choice of means by which to reduce aircraft noise (see the Powell and Rayner judgment, § 45), and the economic well-being of the country, referred to in Article 8 § 2 of the Convention, which relates to the general interest, a matter towards which I am personally very sensitive. (I refer in this connection to my dissenting opinion in the case of Chassagnou against France: judgment of 29 April 1999.)

There were therefore serious reasons for considering, as did the judges forming the minority, that the inconvenience caused to the applicant as a result of their proximity to Heathrow airport was not disproportionate.

It seems to me, however, that the inconvenience was very substantial and, all in all, excessive. As stated in paragraphs 10 to 17 of the judgment, the eight applicants lived very near the runways, and four of them had to move house. They certainly did not do so merely to satisfy a whim, but because they and their families had been finding it extremely difficult to bear the noise, and, in particular, to sleep. It should not be forgotten that, unlike the cases which were the subject of the Powell and Rayner judgment, and the decisions of the Commission such as Arrondelle (DR 26, p. 5) or Baggs (DR 44, p. 13), what was at issue here were night flights, with aeroplanes landing or taking off between 4 a.m. and 6 a.m. Anyone who has suffered for a long period from noise disturbance such as to disrupt their sleep (or prevent them from getting back to sleep once awake) is well aware that the effects of this on the nerves and on one’s physical and mental well-being are extremely unpleasant and even harmful. Furthermore, again unlike the earlier cases, the applications lodged by Mrs Hatton and the other applicants concern the period subsequent to 1993, and the Government have acknowledged that since 1993 the number of night flights has

substantially increased (see, for example, the admissibility decision of 16 May 2000, p. 13, and the present judgment, paragraph 98).

Moreover, the issues raised by the case do not necessarily boil down to macro economic considerations requiring radical solutions which would compromise the economic well-being of the country (or of the airline companies, the airport authorities, or all three categories at once). In accordance with its positive obligations, could the State not have explored less drastic solutions, such as subsidies (from the State or from the Heathrow management authorities) to soundproof the applicants’ homes? The objection may be raised that they are not the only residents suffering from the noise and that, consequently, that solution would have opened the floodgates to multiple requests for subsidies or compensation, whereupon the macro economy would again be in issue and would subsume the individual nature of the applications and violations.

That is certainly true, but it has to be one thing or the other: either the number of potential victims of night flight noise is limited and the “beneficiaries” of those flights can compensate them, or it is too high for the level of compensation to be financially viable for the beneficiaries, whereupon night flights need to be reviewed in their entirety.

It therefore appears to me that, having regard to the Court’s case-law on the right to a healthy environment (see, for example, the Lopez Ostra against Spain judgment of 9 December 1994, or the Guerra against Italy judgment of 19 February 1998), maintaining night flights at that level meant that the applicants had to pay too high a price for an economic well-being, of which the real benefit, moreover, is not apparent from the facts of the case. Unless, of course, it is felt that the case-law goes too far and overprotects a person’s right to a sound environment. I do not think so. Since the beginning of the 1970s, the world has become increasingly aware of the importance of environmental issues and of their influence on people’s lives. Our Court’s case-law has, moreover, not been alone in developing along those lines. For example, Article 37 of the Charter of Fundamental Rights of the European Union of 18 December 2000 is devoted to the protection of the environment. I would find it regrettable if the constructive efforts made by our Court were to suffer a setback.

That is why I have finally subscribed, in the main, to the reasoning of the majority of my colleagues, and fully to their conclusion.

partly dissenting opinion of judge greve

In the present case I have not found a violation of Article 8.

In reaching this finding I share essentially the views expressed by Sir Brian Kerr in his dissenting opinion relating to Article 8. I am, however, unlike Sir Brian, prepared to accept the applicants’ allegation that the night flights’ noise did interfere substantially with their sleep.

In the following I shall limit myself to elaborating on the main points on which I take a different view from that of the majority of my colleagues in this case.

Introductory remark

Article 8 §1 reads:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

In relation to the notion of “home”, the essence of the protection under the provision is to secure the inviolability of one’s home, that is to safeguard private individuals against arbitrary interference with their homes. The Convention being a living instrument, the provision has gradually been interpreted to include also environmental rights. There are limits as to the kind of environmental problems – pollution in the widest sense of the word – which people will have to accept before these problems give rise to a violation of Article 8. These environmental rights are nonetheless of a different character from the core right not to have one’s home raided without a warrant. Environmental problems may lead to State responsibility under Article 8 as a consequence of the impact of planning decisions, and potentially also when a State refrains from adequately addressing serious environmental problems.

The State’s inquiry into night flights

Unlike the majority, I find no major shortcomings in the State’s inquiry into night flights’ noise and the decision-making process used in this case by the authorities in the United Kingdom. On the contrary, I find that the procedures were reasonable and adequate.

The margin of appreciation

An interference with the right to respect for one’s home will infringe Article 8 of the Convention, unless it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” to achieve those aims. In the present case, the main issue turns on whether the latter requirement was satisfied.

The majority’s understanding of the margin of appreciation left to the national courts is, in my opinion, in conflict with the Court’s established case-law.

The standard relied on by the majority requiring States “to minimise, as far as possible, the interference with [Article 8] rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights” (paragraph 97 of the judgment) is, in my opinion, incompatible with the wide margin of appreciation left by the European Court to Contracting States in other planning cases.

The general principles in this respect are laid down in the Buckley v. the United Kingdom judgment (25 September 1996, Reports of Judgments and Decisions 1996 -IV, pp. 1291-1293, §§ 74-77), and read:

“As is well established in the Court’s case-law, it is for the national authorities to make the initial assessment of the ‘necessity’ for an interference, as regards both the legislative framework and the particular measure of implementation (see, inter alia and mutatis mutandis , the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, § 59, and the Miailhe v. France (no. 1) judgment of 25 February 1993, Series A no. 256-C, p. 89, § 36). Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention.

The scope of this margin of appreciation is not identical in each case but will vary according to the context (see, inter alia and mutatis mutandis , the above-mentioned Leander judgment, ibid.). Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.

The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community (in the context of Article 6 § 1, see the Bryan judgment cited above, p. 18, § 47; in the context of Article 1 of Protocol No. 1, see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, § 69; the Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A no. 117, pp. 65-66, §§ 74-75 and 78; the Poiss v. Austria judgment of 23 April 1987, Series A no. 117, p. 108, §§ 64-65, and p. 109, § 68; the Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 17, § 57, and p. 19, § 63). It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases (see, mutatis mutandis , the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, § 49). By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.”

These principles have most recently been followed by the Court’s Grand Chamber in its judgments of 18 January 2001 in the cases of Chapman v. the United Kingdom (application no. 27238/95), Beard v. the United Kingdom (application no. 24882/94), Coster v. the United Kingdom (application no. 24876/94), Lee v. the United Kingdom (application no. 25289/94) and Jane Smith v. the United Kingdom (application no. 25154/94); and in the inadmissibility decision of 25 May 2000 by the Court (Fourth Section) in the Noack and Others v. Germany case (application no. 46346/99). The latter case is of particular interest as it involved no less than the transfer of an entire village – members of the Sorbian minority included. The Court (Fourth Section) described the background to the case as follows:

“The case concerns the transfer – scheduled to take place at the end of 2002 – of the inhabitants of Horno, a village in the Land of Brandenburg fifteen kilometres north of the town of Cottbus, near the Polish border. Horno has a population of 350, approximately a third of whom are from the Sorbian minority, of Slav origin. The first twelve applicants say that they are members of the Sorbian minority. [The other applicants were the Domowina, an association for the protection of Sorbian interests, and the Horno Protestant community.] Approximately 20,000 Sorbs ( Sorben ) live in the Land of Brandenburg. They have their own language and culture. They have their own customs ( sorbisches Brauchtum ), which are kept alive by groups performing Sorbian songs or wearing traditional costumes and by drama societies, literary circles and drawing classes. The majority of Sorbs are Protestants.

The inhabitants of Horno are to be transferred to a town some twenty kilometres away because of an expansion of lignite-mining operations ( Braunkohleabbau ) in the area, as the Jänschwalde open-cast lignite mine ( Braunkohletagebau ) is just a few kilometres from Horno.”

The Court (Fourth Section) concluded that the impugned interference, though indisputably painful for the inhabitants of Horno, was not disproportionate to the legitimate aim pursued (economic well-being) in view of the margin of appreciation which States are afforded in this area.

The reasons for a wide margin of appreciation in planning and environmental cases are in my opinion no less valid today. In modern society, environmental problems are not discreet and only of concern to those who may invoke Article 8, given their proximity to the source of the given problem. One of the functions of planning is, to the extent possible, to protect people against the negative impact on the environment of, for instance, and as in casu , the transport infrastructure; another function is to ensure that no group of people is disproportionately affected by what is considered necessary to meet the needs of modern urban society. The amount and complexity of the factual information needed to strike a fair balance in these respects is more often than not of such a nature that the European Court will be at a marked disadvantage compared to the national authorities in terms of acquiring the necessary level of understanding for appropriate decision-making. Moreover, environmental rights represent a new generation of human rights. How the balance is to be struck will therefore affect the rights not only of those close enough to the source of the environmental problem to invoke Article 8, but also the rights of those members of the wider public affected by the problem and who must be considered to have a stake in the balancing exercise.

Furthermore, the general principle concerning the assessment of facts argues in favour of a wide margin of appreciation in these cases.

The general principle concerning the assessment of facts

It is normally not within the province of the Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see, inter alia , the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, § 29).

The arguments listed above in favour of a wide margin of appreciation in planning cases also have as a consequence that the Court ought to be reluctant to substitute its own assessment of facts in these cases unless there are relatively clear and substantiated indications that the national authorities have got the facts wrong. In my opinion, there are no such indications in the present case which would make the Court a more competent fact-finder than the national authorities. I consider that the majority moves beyond what appears to me advisable in this respect.

dissenting opinion of sir brian kerr

I regret that I am unable to agree with my fellow judges in their conclusion that there have been violations of Articles 8 and Article 13 of the Convention in this case.

Article 8

Article 8 prohibits unjustified State interference with an individual’s “right to respect for his private ... life [and] his home”. The opportunity for undisturbed sleep is an important aspect of one’s private life. The flying of aircraft at night can interfere with the sleep of those who live in its flight path. It scarcely requires to be said, however, that, by allowing night flights, (even those which cause sleep interference) the State is not automatically guilty of an unjustified interference with the right to respect for private life and home. Before that conclusion can be reached, a close examination is required of (i) the nature of the alleged interference, (ii) the State’s inquiry into the effects of night flights’ noise and (iii) the assessment that the State has made of the consequences of curtailing night flights.

The nature of the interference

The applicants’ claims that their sleep has been disturbed have not been subjected to any critical challenge. The account that they have given in documents submitted to the court cannot be accepted without reservation, therefore. Nor can the assumption be made that these accounts are necessarily representative of a general experience of those who live in the same areas as the applicants. In making an assessment of whether the State has been guilty of a failure to have respect for the applicants’ private life and home, it must be borne in mind that the extent of the claimed disturbance has not been established to any significant degree.

It may be considered that it is not easy to prove that one’s sleep has been disturbed. This difficulty does not alone justify the weight given by the Chamber to an alleged absence of scientific study into the problem. There can be no substitute for a discussion of the facts of the specific case before the Court. This is after all an application under Article 34 of the Convention, and not Article 33.

It is relevant that none of the applicants has been prevented from moving away from the area. None claims that their house became unsaleable or that they lost value to such an extent that equivalent property elsewhere was not affordable. This point does not, of course, deprive the applicants of the status required to claim to be victims of a violation of the Convention within the meaning of Article 34, but it is highly material in determining whether, overall, the government’s policy was so wide-ranging and unreasonable as to render it incompatible with Article 8 of the Convention. It is well known

that pressure on property prices around London is so great that they are not seriously affected by aircraft noise. In such circumstances, those who claim sleep disturbance from night flying have a genuine choice as to whether to remain or to move elsewhere.

Modern life is beset with inconveniences. It is an inevitable incident of our changing world that land use plans change and that those changes have an impact on the lives of individuals. From time to time motorways are extended, roads are re-routed or public buildings are erected near private property. Those who are directly affected by such developments are naturally most likely to oppose them. So it is with night flights. But the mere fact that one’s private life is interfered with by such developments is not enough to attract the protection of Article 8. It must be demonstrated that, in trying to balance the individual’s rights and society’s needs and interests, the State has not afforded the rights enshrined in that provision the requisite respect. In addressing that question, the possibility of removing oneself from the source of the inconvenience cannot be ignored.

Having considered all the available evidence, I have concluded that it has not been established that there was a significant interference with the applicants’ right to private life.

The State’s inquiry into night flights’ noise

The majority has concluded that the State did not conduct a sufficient inquiry into the effects of night flying on the sleep of those affected by it (paragraph 106). Since the introduction of the 1993 scheme, however, the Government has taken the following steps, among others, (i) consulted on revised proposals in October and November 1993; (ii) commissioned a study by ANMAC in May 1994; (iii) issued a Consultation paper in March 1995 and a supplement in June 1995; (iv) initiated a trial of modified procedures for early morning landings and published the results in November 1998; (v) commissioned a study to be carried out by the National Physical Laboratory in December 1997; (vi) engaged in a two stage consultation exercise in 1998, publishing the second stage in November of that year; (vii) as a result of the consultation exercise, introduced a new scheme in 1999, and (viii) published a report in March 2000 identifying a number of issues for further possible research.

I cannot subscribe to the view that the Government have been unwarrantably inactive in this area, therefore. On the contrary, the amount of research that has been conducted into the problem of night noise has been substantial, in my opinion. Furthermore, as the judgment records, (paragraph 64) a series of noise mitigation and abatement measures is in place at Heathrow airport, in addition to restrictions on night flights. The DETR and the management of Heathrow airport conduct continuous and detailed monitoring of the restrictions of night flights. These measures betoken a concern that the right to a private life should not be unduly interfered with rather than a failure to accord that right the requisite respect.

The consequences of curtailing night flights

The majority has concluded that “mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others”. I agree. In the present case, however, it is surely misconceived to characterise the case made on behalf of the United Kingdom as a “mere reference” to the economic well being of the country. As the judgment has acknowledged, (paragraph 90) the United Kingdom Government had available to them detailed information regarding the economic importance of night flights at Heathrow. The applicants have challenged the accuracy and validity of that information. In particular, they claim that the Oxford Economic Forecasting report did not consider separately the economic importance of night flights. I am not persuaded, however, that it is possible to segregate the night flights factor in the way suggested by the applicants and I do not consider that it has been shown that the economic effects of curtailing night flights will be other than substantial.

The importance to the national economy of the aircraft industry as a whole, and of Heathrow airport in particular, is self-evident. As to the specific role of night flights at Heathrow, some 3% of air movements take place between 23.30 and 6.30; flights between 6.00 and 6.30 are almost exclusively long haul arrivals. British Airways have informed the Court that this sector of the market is particularly important for them for a number of reasons – customer preference, the need to use aircraft as intensively as possible and the lack of runway and terminal capacity at other times – and there is every reason why the same should apply to other airlines. It is, in my view, beyond plausible dispute that night flights form part of that national economic interest. The preponderance of the evidence available to the Court strongly favours the conclusion that there will be considerable adverse effect to the economy if night flights are curtailed.

Striking the balance

In reaching the conclusion that the economic well-being of the country did not outweigh the rights of the applicants, the majority referred to the Lopez Ostra case in which the Court found State responsibility for nuisances created by a waste-treatment plant. It has been pointed out that, notwithstanding the undoubted economic interest for the national economy of the tanneries concerned in Lopez Ostra, the Court looked in considerable detail at “whether the national authorities took the measures necessary for protecting the applicant’s right to respect for her home and for her private and family life...” I would again respectfully agree that this is an entirely appropriate approach. But the fact that the interest for the national economy of the enterprise concerned did not outweigh the State’s obligation to have respect for the applicant’s rights under Article 8 in the Lopez Ostra case, does not diminish the potential importance of that factor in other cases in considering whether, if there has been interference with the right to respect for private life and home, that interference may be said to be unjustified. Each case must be considered on its individual merits. In some cases, the economic argument may be pivotal where the interference is not substantial; in others it may be weak, particularly where the interference is considerable. The case of Lopez Ostra does not purport to lay down a general principle that the interest for the national economy is a factor which is to be disregarded or that it must always yield to the need to protect the right to respect for private and home life, especially if the interference with those rights is peripheral or illusory.

Moreover, I would point to a number of significant differences between that case and the present. In Lopez Ostra, the domestic courts accepted that it had been established that the operation of the waste treatment plant created nuisances that “impaired the quality of life of those living in the plant’s vicinity” (p. 54, § 50). In the present case, the applicants were not parties in the only court proceedings in the domestic courts. No domestic court has evaluated the actual impact on their lives of the night flights complained of, therefore. Moreover, such proceedings as have been undertaken have concerned procedural aspects of the policy-making process rather than the assessment of any actual nuisance.

By contrast, the waste-treatment plant at issue in Lopez Ostra had started to operate recently (it was built in 1988), was patently illegal in that it was operating without the necessary licences (p. 43, § 8), and the authorities (in re-housing residents, p. 53, § 53) and the courts (p. 44, § 11) accepted that the operation caused actual nuisance. In the present case, Heathrow had been a major international airport long before any of the applicants took up residence at the addresses where they lived when the application was introduced, none of the night flights has been established to be illegal, and the authorities have never taken any measures specific to the applicants.

The majority decision does not address these issues. Rather, it relies on what appears to be a wholly new test for the application of Article 8 in proclaiming that States are required “to minimise, as far as possible, the interference with [Article 8] rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights” (paragraph 97). I am not aware of any other Convention case in which such a test has been applied. Indeed, it is difficult to see how it can be reconciled with the principle that States should have a margin of appreciation in devising measures to strike the proper balance between respect for Article 8 rights and the interests of the community as a whole. This margin of appreciation was expressly acknowledged in the Lopez Ostra case (p. 54, § 51; p. 56, § 58). The test enunciated by the majority denies to States any discretion as to how they wish to address socio-economic issues, and instead requires that all policy decisions be dictated by a strict “minimum interference with fundamental rights” rule. Such a rule can form part of domestic law, and is not out of place in the case-law of the European Court of Justice, which is itself an essential part of domestic law for the member States of the European Union. It appears to me to be in conflict with the essential subsidiarity of the Convention system [1] , however, and cannot therefore be appropriate to the present case.

Looking at the balance that has to be struck between competing interests (the cases are cited at paragraph 96 of the judgment), one evidently must bear in mind all the factors in a case. The Chamber sets against an increase in permitted levels of night noise from 1993 the following factors: an absence of scientific and/or independent information on the economic interest in night flights (paragraphs 100-102); a limited amount of research as to sleep disturbance and prevention (paragraph 103), and specific action taken to mitigate night noise (paragraph 105). Requiring, as the Chamber in effect does, specific research into the extent of the obvious seems to me to be placing a very substantial, and retroactive, burden on the Government.

A further point to be considered in striking the balance between the various interests is that the applicants are challenging not a specific decision which affected them, but a macro-economic policy. It is open to the Court to consider the effect of general policies or laws on individuals, but it must be aware that to make an assessment of a general policy on the basis of a specific case is an exercise that is fraught with difficulty.

Article 8 § 2 includes in the list of justifications for an interference with Article 8 § 1 rights “the rights of others”. In a case involving night flights, the rights and freedoms of air carriers and of passengers must be brought into the equation. It is difficult to envisage how the Government may do so in any meaningful way if they are obliged “to minimise, as far as possible, the interference with [Article 8] rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights”.

In performing the balancing exercise under Article 8 in this case, one should also consider the consequences of a finding that there has been a violation. The mere fact that a finding of a violation in a particular case might give rise to a large number of applications is not a reason to shirk from that finding. If Convention standards are not met in an individual case, it is the role of the Court to say so, regardless of how many others are in the same position. But when, as here, a substantial proportion of the population of south London is in a similar position to the applicants, the Court must consider whether the proper place for a discussion of the particular policy is in Strasbourg, or whether the issue should not be left to the domestic political sphere.

It will be apparent from the above that I consider that there are so many factors weighing against the applicants, and so few in their favour, that I cannot subscribe to a conclusion that the balance required by Article 8 was not struck in this case.

Article 13

I have concluded that there was no violation under Article 8. As the majority have pointed out, Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances that can be regarded as “arguable” in terms of the Convention. I take the view that the Article 8 claims must so clearly be decided in the Government’s favour, that they cannot be considered to be “arguable”. Therefore, I must also conclude that there has not been a violation of Article 13.

Had I concluded that the Article 8 claim was arguable, I would still have had doubts as to whether there was a violation of Article 13. The English courts recognise that the intensity of review in a public law case will depend on the subject matter (R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840, at page 847, approved by Lord Steyn in R v. Secretary of State of the Home Department, ex parte Daly [2001] 3 All ER 433 at page 477). While this Chamber in its Smith and Grady judgment found that judicial review did not satisfy the requirements of Article 13, that case involved matters of an intensely personal nature for the applicants which put it clearly within the scope of Article 8, and the national security considerations reduced the scope of the review. The present case is different in that the interference with the applicants’ right to respect for their Article 8 rights is, as I have outlined above, difficult to define. In these circumstances, I consider that the possibility of a judicial review of the Minister’s policy by way of a challenge to the reasonableness, lawfulness and arbitrariness of the policy is precisely the sort of remedy Article 13 envisages in cases involving not a specific decision, or a decision directly affecting an individual, but a challenge to a general policy on night flights.

[1]   See, for example, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, % 48 and Z. and Others v. the United Kingdom [GC], no. 29392/95, § 103, ECHR 2001.