Noise pollution
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).
The Court observed that 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 had been adversely affected by the noise generated by aircraft using Heathrow Airport. However, it also pointed out that the existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft had become necessary in the interests of a country’s economic well-being. A number of measures had further been introduced by the responsible authorities to control, abate and compensate for aircraft noise at and around Heathrow Airport. In the applicants’ case, the Court found that that the United Kingdom Government could not 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 of the Convention. It therefore held that there had been no violation of Article 13 (right to an effective remedy) of the Convention in respect of the claims of either applicant under Article 8 since no arguable claim of violation of Article 8 and no entitlement to a remedy under Article 13 had been made out in relation to either applicant.