B. Appraisal of the facts of the case in the light of the general principles
1. The Chamber's judgment
105. The Chamber found that, overall, the level of noise during the hours 11.30 p.m. to 6 a.m. had increased under the 1993 Scheme. It considered that, in permitting increased levels of noise from 1993 onwards, the Government had failed to respect their positive obligation to the applicants, through omitting, either directly or through the commissioning of independent research, critically to assess the importance of the contribution of night flights to the United Kingdom's economy. The Chamber further criticised the Government for carrying out only limited research into the effects of night flights on local residents prior to the introduction of the 1993 Scheme, noting that the 1992 sleep study was limited to sleep disturbance and made no mention of the problem of sleep prevention. The Chamber did not accept that the "modest" steps taken to mitigate night noise under the 1993 Scheme were capable of constituting "the measures necessary" to protect the applicants. It concluded that "in the absence of any serious attempt to evaluate the extent or impact of the interferences with the applicants' sleep patterns, and generally in the absence of a prior specific and complete study with the aim of finding the least onerous solution as regards human rights, it is not possible to agree that in weighing the interferences against the economic interest of the country - which itself had not been quantified - the Government struck the right balance in setting up the 1993 Scheme".
2. The arguments of the parties
a. The Government
106. The Government recognised that night time noise from aircraft had the capacity to disturb or prevent sleep, but urged the Court to assess critically the applicants' claims that each suffered from a high level of disturbance. In this connection they pointed out that there was a considerable variety in the geographical positions of the applicants and in the levels of night noise to which they were exposed. Furthermore, it was noteworthy that hundreds of thousands of residents of London and the home counties were in similar positions, that the property market in the affected areas was thriving and that the applicants had not claimed that they were unable to sell their houses and move.
107. The Government stressed that all other principal European hub airports had less severe restrictions on night flights than those imposed at the three London airports. Paris Charles de Gaulle and Amsterdam Schiphol had no restrictions at all on the total number of Chapter 3 aircraft which could operate at night, while Frankfurt had restrictions on landings by Chapter 3 aircraft between 1 and 4 a.m. If restrictions on night flights at Heathrow were made more stringent, UK airlines would be placed at a significant competitive disadvantage. Since 1988 they had used the scarce night slots permitted at Heathrow for two purposes: a small number were late evening departures on flights which had been delayed but the majority, typically 13 to 16 flights a night, were early morning arrivals between 4 and 6 a.m. of long-haul scheduled flights, mainly from South East Asia, North America and southern Africa. In recent years the airlines concerned had taken steps to ensure that these arrivals did not land before 4.30 a.m.
The Government submitted that these flights formed an integral part of the network of connecting air services. If they were forced to operate during the day they could provide fewer viable connections with regional services at both ends, making London a less attractive place in which to do business. In any event, daytime capacity at all of London's airports was close to full, and it would be impracticable to reschedule flights out of the night period.
108. The Government asserted that before 1993 they conducted detailed reviews into a number of aspects of the night restrictions regime. Thus, in July 1990 the Department of Transport commenced an internal review into the restrictions then applying, and in January, October and November 1993, and also in March and June 1995, they published Consultation Papers to seek the views of the public and the industries concerned on the need for and effects of night flights and on various proposed modifications to the regime.
The respondents from the airline industry stressed the economic importance of night flights, as set out above. They provided information showing that, in 1993, a typical daily night flight would generate an annual revenue of between GBP 70 and 175 million and an annual profit of up to GBP 15 million. The loss of this revenue and profit would impact severely on the ability of airlines to operate and the cost of air travel by day and night. The Government submitted that the basic components of the economic justification for night flights have never been substantially challenged, either by other respondents to the Consultation Papers or since. Despite accepting the force of the economic justification, the Government did not go as far as they were invited to by the industry; for example, they did not grant the repeated requests for much larger night noise quotas or a night quota period ending at 5 a.m. Instead, they struck a genuine balance between the interests of the industry and of local residents.
109. The Government stressed that they had also had available, in December 1992, the results of research commissioned in July 1990 into aircraft noise disturbance amongst people living near to Gatwick, Heathrow, Stansted and Manchester airports ("the 1992 sleep study" - see paragraph 35 above). This study was, and remained, the most comprehensive of its type, and had been preceded by a number of other reports into aircraft noise and sleep disturbance, including detailed interviews with some 1,636 people living near the airports ("the social survey"). The purpose of all this research, culminating in the 1992 sleep study, was to provide information, on as reliable a scientific basis as possible, as to the effects of night-time aircraft noise on sleep. The sleep study showed that external noise levels below 80 dBA were very unlikely to cause any increase in the normal rate of disturbance of someone's sleep; that with external noise levels between 80-95 dBA the likelihood of an average person being awakened was about 1 in 75; and that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall disturbance rates, although it was possible that the 2-3% of the population who were more sensitive to noise disturbance were twice as likely to be awoken. According to the social survey, approximately 80% of those living in the Heathrow area had said that they were never or only sometimes woken up for any cause. Of those that were woken, 17% gave aircraft noise as the cause, 16% blamed a partner or a child and another 28.5% gave a variety of different reasons. Approximately 35% of those living near Heathrow said that if woken, for any reason, they found it difficult to get back to sleep.
110. The Government submitted that the changes to the hours of restriction, the extension of the quota restrictions to place limits on many previously exempt types of aircraft and the restrictions on the scheduling for landing or taking off of the noisiest categories of aircraft over a longer night period made an exact comparison between the regimes before and after 1993 impossible.
They recognised that there had been an increase in the number of movements between 6 and 6.30 a.m. in winter, since this time slot had been subject to restriction before 1993 and now fell outside the quota period. However, the Government contended that, during the core quota period of 11.30 p.m. to 6 a.m., there had been an improvement in the noise environment because of the measures taken, notably the introduction of the quota count system, to encourage the use of quieter aircraft at night.
b. The applicants
111. The applicants, who accepted the Chamber's judgment as one way of applying the Convention to the facts of the case, underlined that only a very small percentage of flights take place between 11.30 p.m. and 6.00 a.m., and that there are hardly any flights before 4.00 a.m. at all, with an average of four aircraft landing between 4.00 a.m. and 4.59 a.m. in 2000, and 11 between 5.00 a.m. and 5.59 a.m.. They maintained that the disturbance caused by these flights was extensive because the applicants and large numbers of others were affected, and it is the nature of sleep disturbance that once people are awake, even a few flights will keep them awake.
112. The applicants also pointed out that the night noise they are subjected to is frequently in excess of international standards: the World Health Organisation sets as a guideline value for avoiding sleep disturbance at night a single noise event level of 60 dBA Lmax; almost all the applicants have suffered night noise events in excess of 80 dBA Lmax, and in one case as high as 90 dBA Lmax. Because of the logarithmic nature of the decibel scale, noise energy at 80 dBA Lmax is one hundred times the noise energy at 60 dBA Lmax, and in terms of subjective loudness is four times as loud.
113. The applicants contended that the 1993 Scheme was bound to, and did, result in an increase in night flights and deterioration in the night noise climate, regardless of whether the position was measured by reference to the official night period from 11.00 p.m. to 7.00 a.m. or the night quota period from 11.30 a.m. to 6.00 a.m.
114. The applicants pointed to the absence of any research into sleep prevention before the 1993 Scheme, and added that post-1993 studies and proposals did not amount to an assessment of the effect of night noise on sleep prevention. They further noted the absence of any Government-commissioned research into the economic benefits claimed for night flights, seeing this omission as particularly serious given that many of the world's leading business centres (eg Berlin, Zurich, Munich, Hamburg and Tokyo) have full night-time passenger curfews of between 7 and 8 hours.
3. The third parties
115. British Airways, whose submissions were supported by the British Air Transport Association ("BATA") and the International Air Transport Association ("IATA"), submitted that night flights at Heathrow play a vital role in the United Kingdom's transport infrastructure, and contribute significantly to the productivity of the United Kingdom economy and the living standards of United Kingdom citizens. They contended that a ban on, or reduction in, night flights would cause major and disproportionate damage to British Airways' business, and would reduce consumer choice. The loss of night flights would cause significant damage to the United Kingdom economy.
4. The Court's assessment
116. The case concerns the way in which the applicants were affected by the implementation of the new 1993 scheme for regulating night flights at Heathrow. The 1993 Scheme was latest in the series of restrictions on night flights which began, at Heathrow, in 1962, and it replaced the previous, five-year, 1988 scheme. Its aims included, according to the 1993 Consultation Paper (see paragraph 36 above), both protection of local communities from excessive night noise, and taking account of the wider economic implications. The undertaking given by the Government in 1988, "not to allow a worsening of noise at night, and ideally to improve it", was maintained (see paragraphs 41 and 43 above). Specifically, the scheme replaced the earlier system of movement limitations with a regime which gave aircraft operators a choice, through the quota count, as to whether to fly fewer noisier aircraft, or more less noisy types (for details, see paragraphs 44-46 above). Although modified in some respects following various judicial review proceedings (cf. paragraphs 47-50 and 80-83 above) and as a result of further studies and consultations (cf. paragraphs 51-69 above), the quota count system introduced in 1993 has remained in place to the present day, the authorities continuing to monitoring the situation with a view to possible improvements (cf. paragraphs 70-75 above).
117. The 1993 Scheme accepted the conclusions of the 1992 sleep study (see paragraph 35 above) that for the large majority of people living near airports there was no risk of substantial sleep disturbance due to aircraft noise and that only a small percentage of individuals (some 2 to 3%) were more sensitive than others. On this basis, disturbances caused by aircraft noise were regarded as negligible in relation to overall normal disturbance rates (cf. paragraph 40 above). The 1992 sleep study continued to be relied upon by the Government in their 1998/99 review of the regulations for night flights, when it was acknowledged that further research was necessary, in particular as regards sleep prevention, and a number of further studies on the subject were commissioned (paragraphs 58-59 and 73 above).
118. The Court has no doubt that the implementation of the 1993 Scheme was susceptible of adversely affecting the quality of the applicants' private life and the scope for their enjoying the amenities of their respective homes, and thus their rights protected by Article 8 of the Convention. Each of the applicants has described the way in which he or she was affected by the changes brought about by the 1993 Scheme at the relevant time (see paragraphs 11-26 above), and the Court sees no reason to doubt the sincerity of their submissions in this respect. It is true that the applicants have not submitted any evidence in support of the degree of discomfort suffered, in particular they have not disproved the Government's indications as to the "objective" daytime noise contour measured at each applicant's home (ibid). However, as the Government themselves admit, and as is evident from the 1992 sleep study on which they rely, sensitivity to noise includes a subjective element, a small minority of people being more likely than others to be awoken or otherwise disturbed in their sleep by aircraft noise at night. The discomfort caused to the individuals concerned will therefore depend not only on the geographical location of their respective homes in relation to the various flight paths, but also on their individual disposition to be disturbed by noise. In the present case the degree of disturbance may vary somewhat from one applicant to the other, but the Court cannot follow the Government when they seem to suggest that the applicants were not, or not considerably, affected by the scheme at issue.
119. It is clear that in the present case the noise disturbances complained of were not caused by the State or by State organs, but that they emanated from the activities of private operators. It may be argued that the changes brought about by the 1993 Scheme are to be seen as a direct interference by the State with the Article 8 rights of the persons concerned. On the other hand, the State's responsibility in environmental cases may also arise from a failure to regulate private industry in a manner securing proper respect for the rights enshrined in Article 8 of the Convention. As noted above (paragraph 98), broadly similar principles apply whether a case is analysed in terms of a positive duty on the State or in terms of an interference by a public authority with Article 8 rights to be justified in accordance with paragraph 2 of this provision. The Court is not therefore required to decide whether the present case falls into the one category or the other. The question is whether, in the implementation of the 1993 policy on night flights at Heathrow airport, a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole.
120. The Court notes at the outset that in previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime. Thus, in López Ostra the waste-treatment plant at issue was illegal in that it operated without the necessary licence, and it was eventually closed down (López Ostra judgment, pp. 46, 47, §§ 16-22). In Guerra, too, the violation was founded on an irregular position at the domestic level, as the applicants had been unable to obtain information that the State was under a statutory obligation to provide (Guerra judgment p. 219, §§ 25-27).
This element of domestic irregularity is wholly absent in the present case. The policy on night flights which was set up in 1993 was challenged by the local authorities, and was found, after a certain amount of amendment, to be compatible with domestic law. The applicants do not suggest that the policy (as amended) was in any way unlawful at a domestic level, and indeed they have not exhausted domestic remedies in respect of any such claim. Further, they do not claim that any of the night flights which disturbed their sleep violated the relevant regulations, and again any such claim could have been pursued in the domestic courts under Section 76 (1) of the Civil Aviation Act 1982.
121. In order to justify the night flight scheme in the form in which it has operated since 1993, the Government refer not only to the economic interests of the operators of airlines and other enterprises as well as their clients, but also, and above all, to the economic interests of the country as a whole. In their submission these considerations make it necessary to impinge, at least to a certain extent, on the Article 8 rights of the persons affected by the scheme. The Court observes that according to the second paragraph of Article 8 restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others. It is therefore legitimate for the Government to have taken the above economic interests into consideration in the shaping of its policy.
122. The Court must consider whether the Government can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (see paragraph 103 above).
123. The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not specifically addressed to the applicants in this case, although it had obvious consequences for them and other persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in the case of Dudgeon to call for an especially narrow scope for the State's margin of appreciation (see Dudgeon v. the United Kingdom, cited above, p. 21, § 52 and paragraph 102 above). Rather, the normal rule applicable to general policy decisions (see paragraph 97 above) would seem to be pertinent here, the more so as this rule can be invoked even in relation to individually addressed measures taken in the framework of a general policy, such as in the above-mentioned Buckley case (see paragraph 101 above). Whilst the State is required to give due consideration to the particular interests the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.
124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did; the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period (cf. paragraph 61 above). The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8.
125. Whether in the implementation of that regime the right balance has been struck in substance between the Article 8 rights affected by the regime and other conflicting community interests depends on the relative weight given to each of them. The Court accepts that in this context the authorities were entitled, having regard to the general nature of the measures taken, to rely on statistical data based on average perception of noise disturbance. It notes the conclusion of the 1993 Consultation Paper that due to their small number sleep disturbances caused by aircraft noise could be treated as negligible in comparison to overall normal disturbance rates (cf. paragraph 40 above). However, this does not mean that the concerns of the people affected were totally disregarded. The very purpose of maintaining a scheme of night flight restrictions was to keep noise disturbance at an acceptable level for the local population living in the area near the airport. Moreover, there was a realisation that in view of changing conditions (increase of air transport, technological advances in noise prevention, development of social attitudes, etc.) the relevant measures had to be kept under constant review.
126. As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights. In particular, the Government claim that some flights from far-east destinations to London could arrive only by departing very late in the night, giving rise to serious passenger discomfort and a consequent loss of competitiveness. One can readily accept that there is an economic interest in maintaining a full service to London from distant airports, and it is difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole. However, airlines are not permitted to operate at will, as substantial limitations are put on their freedom to operate, including the night restrictions which apply at Heathrow. The Court would note here that the 1993 Scheme which was eventually put in place was stricter than that envisaged in the 1993 Consultation Paper, as even the quietest aircraft were included in the quota count system. The Government have in addition resisted calls for a shorter night quota period, or for the lifting of night restrictions. The Court also notes subsequent modifications to the system involving further limitations for the operators, including inter alia the addition of an overall maximum number of permitted aircraft movements (paragraph 50) and reduction of the available quota count points (paragraph 66).
127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above (paragraph 74). The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure.
128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the Government have consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the Government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme thus had been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken into account, they could have challenged subsequent decisions, or the scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN (see paragraph 1 above), and were thus particularly well-placed to make representations.
129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights.
130. There has accordingly been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
131. The applicants contended that judicial review was not an effective remedy in relation to their rights under Article 8 of the Convention, in breach of Article 13.
Article 13 provides:
132. The Government disputed the applicants' contention that there had been a violation of Article 13.
1. The Chamber's judgment
133. In its judgment of 2 October 2001, the Chamber held that the scope of review by the domestic courts did not allow consideration of whether the increase in night flights under the 1993 Scheme represented a justifiable limitation on the Article 8 rights of those who live in the vicinity of Heathrow airport (see paragraphs 115 and 116 of the judgment).
2. The observations of the parties
a. The Government
134. In their letter requesting that the case be referred to the Grand Chamber, the Government made no reference to Article 13 of the Convention. In subsequent communications they referred back to the pleadings before the Commission and the Chamber, summarised at paragraphs 112 and 113 of the judgment, in which they contended that Article 13 was not applicable or, in the alternative, that the scope of judicial review was sufficient to satisfy the requirements of the provision. At the hearing of 13 November 2002 the Government underlined that the present case concerns positive rather than negative obligations, and pointed to similarities between the judicial review proceedings in the United Kingdom and the Convention approach.
b. The applicants
135. The applicants contended, as they had before the Chamber, that they had no private law rights in relation to excessive night noise, as a consequence of the statutory exclusion of liability in section 76 of the Civil Aviation Act 1982. They submitted that the limits inherent in an application for judicial review meant that it was not an effective remedy. They added that in the case of R (Daly) v. Secretary of State for the Home Department ([2001] 2 AC 532), the House of Lords had confirmed the inadequacy of the approach in R v. Minister of Defence ex parte Smith ([1996] QB 517).
3. The third parties
136. The third parties did not comment on the Article 13 issues.
4. The Court's assessment
137. As the Chamber recalled, Article 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 v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 54). In the present case, it has not found a violation of Article 8, but the Court considers that confronted with a finding by the Chamber that the Article 8 issues were admissible and indeed that there was a violation of that provision, it must accept that the claim under Article 8 was arguable. The complaint under Article 13 must therefore be considered.
138. The Court would first recall that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's laws to be challenged before a national authority on the ground of being contrary to the Convention (see the Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, p. 62, § 40). Similarly, it does not allow a challenge to a general policy as such. Where an applicant has an arguable claim to a violation of a Convention right, however, the domestic regime must afford an effective remedy (ibid, p. 62, § 39).
139. As the Chamber found, Section 76 of the 1982 Act prevents actions in nuisance in respect of excessive noise caused by aircraft at night. The applicants complain about the flights which were permitted by the 1993 Scheme, and which were in accordance with the relevant regulations. No action therefore lay in trespass or nuisance in respect of lawful night flights.
140. The question which the Court must address is whether the applicants had a remedy at national level to "enforce the substance of the Convention rights ... in whatever form they may happen to be secured in the domestic legal order" (Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, §§ 117 to 127). The scope of the domestic review in the Vilvarajah case, which concerned immigration, was relatively broad because of the importance domestic law attached to the matter of physical integrity. It was on this basis that judicial review was held to comply with the requirements of Article 13. In contrast, in its judgment in the case of Smith and Grady v. the United Kingdom of 27 September 1999 (§§ 135 to 139, ECHR 1999-VI), the Court concluded that judicial review was not an effective remedy on the grounds that the domestic courts defined policy issues so broadly that it was not possible for the applicants to make their Convention points regarding their rights under Article 8 of the Convention in the domestic courts.
141. The Court recalls that judicial review proceedings were capable of establishing that the 1993 Scheme was unlawful because the gap between Government policy and practice was too wide (see R. v. Secretary of State for Transport, ex parte Richmond LBC (No. 2) [1995] Environmental Law Reports p. 390). However, it is clear, as noted by the Chamber, 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 (that is, prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed 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 live in the vicinity of Heathrow airport.
142. In these circumstances, the Court considers that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13.
There has therefore been a violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
143. Article 41 of the Convention provides:
A. Damage
144. The applicants, referring to the Chamber's judgment, considered that a modest award should be made in relation to non-pecuniary damage.
145. The Government took the view that a finding of a violation would itself constitute just satisfaction in respect of a violation of either Article 8 or Article 13.
146. The Chamber awarded the applicants the sum of GBP 4,000 each as non-pecuniary damage in respect of the violations it found of Articles 8 and 13.
147. The Court has found a violation of the procedural right to an effective domestic remedy under Article 13 of the Convention in respect of the applicants' complaints under Article 8, but no violation of the substantive right to respect for private life, family life, home and correspondence under Article 8 itself.
148. The Court recalls that in the case of Camenzind v. Switzerland, (judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2897, § 57) the Court found a violation of Article 13 of the Convention in relation to the applicant's claim under Article 8 of the Convention, but no substantive violation of the Convention. In that case the Court considered that the judgment in itself constituted sufficient just satisfaction for the alleged non-pecuniary damage.
Furthermore, in the present case, the violation of Article 13 derived, not from the applicants' lack of any access to the British courts to challenge the impact on them of the Government's policy on night flights at Heathrow Airport, but rather from the overly narrow scope of judicial review at the time, which meant that the remedy available under British law was not an "effective" one enabling them to ventilate fully the substance of their complaint under Article 8 of the Convention (see paragraphs 140-142 above).
This being so, the Court considers that, having regard to the nature of the violation found, the finding of a violation in itself constitutes adequate just satisfaction in respect of any non-pecuniary damage.
B. Costs and expenses
149. The applicants claimed a total of GBP 153,867.56 plus GBP 24,929.55 value added tax ("VAT") in respect of the costs before the Chamber, and an additional GBP 154,941.48 plus GBP 23,976.82 VAT (totalling GBP 178,918.30) before the Grand Chamber.
150. The Government made a number of comments on to the costs and expenses before the Grand Chamber. They challenged the rates charged by the solicitors involved, and considered that the time billed by the solicitors was excessive. They also considered that the fees charged by counsel and the applicants' experts were excessive. Overall, they suggested a figure of GBP 109,000 as an appropriate figure for the Grand Chamber costs and expenses.
151. The Chamber reduced the costs and expenses claimed by the applicants in the proceedings to then from GBP 153,867.56 to GBP 70,000.
152. Costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (the Sunday Times v. the United Kingdom (Article 50) judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (Beyeler v. Italy (Just satisfaction) [GC], no. 33202/96, 28 May 2002, § 27).
153. The Court recalls that whilst the Chamber found a violation of both Articles 8 and 13 of the Convention, the Grand Chamber has found solely a violation of Article 13 in relation to the applicants' claim under Article 8. Whilst this difference between the findings should be reflected in the award of costs, the Grand Chamber should not lose sight of the fact that Article 13 cannot stand alone. Without an "arguable claim" in respect of the substantive issues, the Court would have been unable to consider Article 13 (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, §§ 52 and 54). The award of costs should therefore reflect the work undertaken by the applicants' representatives on the Article 8 issues to a certain extent, even if not to the same extent as if a violation of Article 8 had also been found.
154. The Court awards the applicants the sum of EUR 50,000, including VAT, in respect of costs and expenses.
C. Default interest
155. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Holds by twelve votes to five that there has been no violation of Article 8 of the Convention;
2. Holds by sixteen votes to one that there has been a violation of Article 13 of the Convention;
3. Holds by fifteen votes to two that the finding of a violation of Article 13 of the Convention constitutes in itself sufficient just satisfaction for any damage sustained by the applicants;
4. Holds unanimously
(a) that the respondent State is to pay the applicants, within three months, EUR 50,000 (fifty thousand euros) in respect of costs and expenses, to be converted into pounds sterling at the rate applicable on the date of settlement, including any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses by thirteen votes to four the remainder of the applicants' claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building,
Strasbourg, on 8 July 2003.
Luzius WILDHABER
President
Paul MAHONEY
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment:
(a) Joint dissenting opinion of Mr Costa, Mr Ress, Mr Türmen, Mr Zupancic and Mrs Steiner;
(b) Dissenting opinion of Sir Brian Kerr.
L.W.
P.J.M.
I. Introduction
We regret that we cannot adhere to the majority's view that there has been no violation of Article 8 of the European Convention of Human Rights in this case. We have reached our joint dissenting standpoint primarily from our reading of the current stage of development of the pertinent case-law. In addition, the close connection between human-rights protection and the urgent need for a decontamination of the environment leads us to perceive health as the most basic human need and as pre-eminent. After all, as in this case, what do human rights pertaining to the privacy of the home mean if day and night, constantly or intermittently, it reverberates with the roar of aircraft engines?
1. It is true that the original text of the Convention does not yet disclose an awareness of the need for the protection of environmental human rights. [FN 1] In the 1950s, the universal need for environmental protection was not yet apparent. Historically, however, environmental considerations are by no means unknown to our unbroken and common legal tradition [FN 2] whilst thirty-one years ago, the Declaration of the United Nations Conference on the Human Environment stated as its first principle:
[FN 1] The idiom 'environmental protection' appears in fifty-seven of our cases. The phrase 'environmental human rights' appears for the first time in the majority judgment.
[FN 2] For example, the extraordinarily sensitive doctrine concerning environmental nuisances goes back to Roman law. Roman law classified these nuisances as immissiones in alienum. Dig.8.5.8.5 Ulpianus 17 ad ed.; see, http://www.thelatinlibrary.com/justinian/digest8.shtml
[FN 3] Declaration of the United Nations Conference on the Human Environment, 1972, see http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID=1503. It is interesting that from the very beginning environmental protection has been linked to personal well-being (health). See, infra, note 10.
The European Union's Charter of Fundamental Rights (even though it does not at present have binding legal force) provides an interesting illustration of the point. Article 37 of the Charter provides:
These recommendations show clearly that the member States of the European Union want a high level of protection and better protection, and expect the Union to develop policies aimed at those objectives. On a broader plane the Kyoto Protocol makes it patent that the question of environmental pollution is a supra-national one, as it knows no respect for the boundaries of national sovereignty. [FN 1] This makes it an issue par excellence for international law -- and a fortiori for international jurisdiction. In the meanwhile, many supreme and constitutional courts have invoked constitutional vindication of various aspects of environmental protection -- on these precise grounds. [FN 2] We believe that this concern for environmental protection shares common ground with the general concern for human rights.
[FN 2] See, for example, Compendium of summaries of judicial decisions in environment related cases (SACEP/UNEP/NORAD Publication Series on Environmental Law and Policy No. 3), Compendium of summaries [http://www.unescap.org/drpad/vc/document/compendium/index.htm]; EPA Search Results [http://oaspub.epa.gov/webi/meta_first_new2.try_these_first].
2. As the Court has often underlined: "The Convention is a living instrument, to be interpreted in the light of present-day conditions" (see, among many other authorities, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 26; and Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, § 71). This "evolutive" interpretation by the Commission and the Court of various Convention requirements has generally been "progressive", in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the Convention to develop the "European public order". In the field of environmental human rights, which was practically unknown in 1950, the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protection against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on.
3. In previous cases concerning protection against aircraft noise the Commission did not hesitate to rule that Article 8 was applicable and declared complaints of a violation of that provision admissible - in the Arrondelle and Baggs cases, for example. In the Arrondelle case (application no. 7889/77, Commission decision of 15 July 1980, Decisions and Reports (DR) 19, p. 186) the applicant's house was just over one and a half kilometres from the end of the runway at Gatwick airport. In the Baggs case (application no. 9310/81, Commission decision of 16 October 1985, DR 44, p. 13) the applicant's property was 400 metres away from the south runway of Heathrow airport. These two applications, which were declared admissible, ended with friendly settlements. While that does not mean that there was a violation of the Convention, it does show that the Government accepted at that time that there was a real problem. And it was for purely technical reasons that the Court itself, in Powell and Rayner (judgment of 21 February 1990, Series A no. 172), which also concerned flights in and out of Heathrow, refused to look into the Article 8 issue.
4. The Court has given clear confirmation that Article 8 of the Convention guarantees the right to a healthy environment: it found violations of Article 8, on both occasions unanimously, in the cases of López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C) and Guerra v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions, 1998-I, fasc. 64). The first of those cases concerned nuisances (smells, noise and fumes) caused by a waste-water treatment plant close to the applicant's home which had affected her daughter's health. The other concerned harmful emissions from a chemical works which presented serious risks to the applicants, who lived in a nearby municipality.
5. The Grand Chamber's judgment in the present case, in so far as it concludes, contrary to the Chamber's judgment of 2 October 2001, that there was no violation of Article 8, seems to us to deviate from the above developments in the case-law and even to take a step backwards. It gives precedence to economic considerations over basic health conditions in qualifying the applicants' "sensitivity to noise" as that of a small minority of people (§ 118). The trend of playing down such sensitivity - and more specifically concerns about noise and disturbed sleep -, runs counter to the growing concern over environmental issues, all over Europe and the world. A simple comparison of the above-mentioned cases (Arrondelle, Baggs, Powell and Rayner) with the present judgment seems to show that the Court is turning against the current.
III. The positive obligation of the State
6. The Convention protects the individual against direct abuses of power by the State authorities. Typically, the environmental aspect of the individual's human rights is not threatened by direct government action. Indirectly, however, the question is often whether the State has taken the necessary measures to protect health and privacy. Even assuming it has, direct State action may take the form of permitting, as here, the operation of an airport under certain conditions. The extent of permissible direct State interference and of the State's positive obligations is not easy to determine in such situations, but these difficulties should not undermine the overall protection which the States have to ensure under Article 8.
7. Thus, under domestic law the regulatory power of the State is involved in protecting the individual against the macroeconomic and commercial interests that cause pollution. The misleading variation in this indirect juxtaposition of the individual and the State therefore derives from the fact that the State is under an obligation to act and omits to do so (or does so in violation of the principle of proportionality). In this respect, we have come a long way from the situation considered by this Court in Powell and Rayner v. the United Kingdom case, judgment of 21 February 1991, § 15, in which the Noise Abatement Act specifically exempted aircraft noise from its protection. The issue in the context of domestic law is, therefore, whether the State has done anything or enough.
8. At least since the case of Powell and Rayner v. the United Kingdom, § 41, the key issue has been the positive obligation of the State.
9. The majority tries to distinguish the present case from the case of Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45) which dealt with the sexual intimacy aspect of the applicant's private life. In § 52 of Dudgeon it is said: "The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8". The majority judgment differentiates this case from Dudgeon by saying: "the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in the case of Dudgeon to call for an especially narrow scope for the State's margin of appreciation" (see § 123 of the judgment).
10. It is logical that there be an inverse relationship between the importance of the right to privacy in question on the one hand and the permissible intensity of the State's interference on the other hand. It is also true that sexual intimacy epitomizes the innermost concentric circle of private life where the individual should be left in peace unless he interferes with the rights of others. However, it is not logical to infer from this that the proportionality doctrine of inverse relationship between the importance of the right to privacy and the permissible interference should be limited to sexual intimacy. Other aspects of privacy, such as health, may be just as 'intimate' albeit much more vital.
11. Privacy is a heterogeneous prerogative. The specific contours of privacy can be clearly distinguished and perceived only when it is being defended against different kinds of encroachments. Moreover, privacy is an aspect of the person's general well-being and not necessarily only an end in itself. The intensity of the State's permissible interference with the privacy of the individual and his or her family should therefore be seen as being in inverse relationship with the damage the interference is likely to cause to his or her mental and physical health. The point, in other words, is not that the sexual life of the couple whose home reverberates with the noise of aircraft engines may be seriously affected. The thrust of our argument is that "health as a state of complete physical, mental and social well-being" is, in the specific circumstances of this case, a precondition to any meaningful privacy, intimacy etc. and cannot be unnaturally separated from it. [FN 1] To maintain otherwise, amounts to a wholly artificial severance of privacy and of general personal well-being. Of course, each case must be decided on its own merits and by taking into account to the totality of its specific circumstances. In this case, however, it is clear that the circles of the protection of health and of the safeguarding of privacy do intersect and do overlap.
12. We do not agree with the majority's position taken in § 123 of the Grand Chamber judgment and especially not with the key language in fine where the majority considers: "Whilst the State is required to give due consideration to the particular interests the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation, the Court's supervisory function being of a subsidiary nature and thus limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance". When it comes to such intimate personal situations as the constant disturbance of sleep at night by aircraft noise there is a positive duty on the State to ensure as far as possible that ordinary people enjoy normal sleeping conditions. It has not been demonstrated that the applicants are capricious, and even if their "sensitivity to noise" and "disposition to be disturbed by noise" may be called "subjective", the Court agreed that they were affected in their ability to sleep "considerably ... by the scheme at issue" (§ 118 of the judgment).
13. It is significant in this respect that under Article 3 sleep deprivation may be considered as an element of inhuman and degrading treatment or even torture. [FN 2] Already, in the inter-State case of Ireland v. the United Kingdom (judgment of 18 January 1978, Series A no. 25, § 96), the Court held, inter alia: "... holding the detainees in a room where there was a continuous loud and hissing noise...", constituted a practice of inhuman and degrading treatment. [FN 1] In the light of the subsequent development of our case-law in Selmouni v. France ([GC], no. 25803/94, § 97, ECHR 1999-V, § 97) the same treatment would now most probably be considered as torture. The present case does not involve torture or inhuman and degrading treatment, and we do not suggest that the complaint could possibly be reclassified under Article 3 of the Convention. Nevertheless, we think that the problem of noise, when it seriously disturbs sleep, does interfere with the right to respect for private and, under specific circumstances, family life, as guaranteed by Article 8, and may therefore constitute a violation of said Article, depending in particular on its intensity and duration.
[FN 1] Similar considerations played a role in the judgment Kalashnikov v. Russia, no. 47095/99 (Sect. 3), ECHR 2002-VI.
14. We also find it inconsistent that the judgment (see § 126) should take into account "serious passenger discomfort" whereas it downgrades (see § 118) the discomfort of all the residents, who are exposed to aircraft noise -- to a "subjective element [of a] small minority of people being more likely than others to be awoken or otherwise disturbed in their sleep...". We do not find it persuasive to engage in the balancing exercise employing the proportionality doctrine in order to show that the abstract majority's interest outweighs the concrete "subjective element of the small minority of people". According to the U.N. World Health Organization [WHO] Guidelines, [FN 2] measurable effects of noise on sleep starts at noise levels of about 30 dBLA. These criteria are objective. They show that this susceptibility to noise is not "subjective" in the sense of being due to oversensitivity or capriciousness. [FN 3] Indeed, one of the important functions of human-rights' protection is to protect 'small minorities' whose 'subjective element' makes them different from the majority.
[FN 3] The guidelines are based on a combination of values of 30 dBLA and 45 dBLA maximum. To protect sensitive persons, a still lower guideline value would be preferred when the background level is low. In the case before the Court, however, almost all the applicants have suffered from night noise events in excess of 80 dBLA and in one case as high as 90 dBLA max. It is noteworthy that the judgment in its assessment did not take into account these international standards concerning the effects noise has on sleep, although the relevant data were available in the file.
15. According to the Consultation paper published by the Government in November 1998, "any value attached to a marginal night flight had to be weighed against the environmental disadvantages. These could not be estimated in monetary terms, but it was possible, drawing on a 1992 sleep study, to estimate the numbers of people likely to be awakened." The 1992 sleep study was limited to sleep disturbances and did not even take into account the problems of those who had been unable to get to sleep in the first place. It is noteworthy that the Government's claims in respect of the country's economic well-being are based on reports prepared by the aviation industry. The Government did not make any serious attempt to assess the impact of aircraft noise on the applicants' sleep. When the 1993 scheme was introduced only very limited research existed on the nature of sleep disturbance and prevention. In this respect, we agree with the findings in the Chamber's judgment (§§ 103-106). Nor has the Government really shown that it has explored all the alternatives, such as using more distant airports.
16. In principle, the general reference to the economic well-being of the country is not sufficient to justify the failure of the State to safeguard an applicant's rights under Article 8. In the Berrehab v. Netherlands case (judgment of 21 June 1988, Series A no. 138), for example, the Court found that the actions of the Dutch authorities could not be justified by the alleged economic well-being of the Netherlands. In López Ostra (cited above), too, the Court held, after examining the Government's argument: "... the State did not succeed in striking a fair balance between the interests of the town's economic well-being ...and the applicant's effective enjoyment of her right to respect for her home and her private and family life" (§ 58).
17. Although we might agree with the judgment when it states: "the Court must consider whether the Government can be said to have struck a fair balance between those interests (i.e. economic interests of the country) and the conflicting interests of the persons affected by noise disturbances" (§ 122), the fair balance between the rights of the applicants and the interests of the broader community must be maintained. The margin of appreciation of the State is narrowed down because of the fundamental nature of the right to sleep, which may be outweighed only by the real, pressing (if not urgent needs) of the State. Incidentally, the Court's own subsidiary role, reflected in the use of the "margin of appreciation", is itself becoming more and more marginal when it comes to such constellations as the relationship between the protection of the right to sleep as an aspect of privacy and health on the one hand and the very general economic interest on the other hand.
18. As stated above, reasons based on economic arguments referring to "the country as a whole" without any "specific indications of the economic cost of eliminating specific night flights" (see § 126 of the judgment), are not sufficient. Moreover, it has not been demonstrated by the respondent State, how and to what extent the economic situation would in fact deteriorate if a more drastic scheme -- aimed at limiting night flights, halving their number or even halting them -- were implemented.
19. Finally, and in view of the powers of the Court under Article 41 and the alleged importance of the macroeconomic interests at stake, indemnification of the 'small minority' should be less of a problem rather than more. The applicants' rights could have been treated much more realistically than they were by the majority. In other words, the issue could have been circumscribed to the "small minority's" entitlement to just satisfaction for the real pecuniary and non-pecuniary damage incurred. Since we do not believe that the 'subjective element' referred to in paragraph 118 of the judgment is simply a euphemism for 'capricious hypersensitivity', the applicants in our opinion ought to have been awarded just satisfaction.
In Christine Goodwin v. the United Kingdom (judgment of 11 July 2002, § 113), the Grand Chamber held that "Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention". That ruling relates to the "state of domestic law", and seems to me to go beyond the traditional view that Article 13 does not guarantee a remedy against "legislation" (as in, for example, the James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 47, § 85). It corresponds closely to the ideas I expressed on Article 13 in my dissenting opinion to the Chamber's judgment of 2 October 2001.
I would here wish simply to record that it is my view, given the nature of the applicants' complaints, the state of domestic law at the time and the role of Article 13 in the Convention structure, that there is no violation of Article 13 in this case.