A. Arguments of the parties

I. The applicants

76. The applicants submitted that, after the 1993 scheme was introduced, the level of noise caused by aircraft taking off and landing at Heathrow airport between 4 a.m. and 7 a.m. increased significantly. They contended that they found it difficult to sleep after 4 a.m., and impossible after 6 a.m. They submitted that the levels of noise to which they were exposed at night were well in excess of those which were considered, internationally, to be tolerable. They contended that the evidence showed that almost all of them had suffered night noise levels in excess of 80 dB LA max, and in one case as high as 90 dB LA max. They referred to the World Health Organisation's guideline value for avoiding sleep disturbance at night, of a single noise event of 60 dB LA max, and argued that the Government had no adequate research to support their contention that levels of 80 dB LA max were tolerable. The applicants submitted that, in these circumstances, there had been an interference with their right to respect for their private and family lives and their home, as guaranteed by Article 8 § 1 of the Convention.

77. The applicants contended that the interference was not "necessary in a democratic society". They submitted that there was a great deal of first-hand evidence of the disruption, distress and ill-health caused by night flights. They underlined that the 1992 sleep study dealt only with awakenings from sleep, and reached no conclusions about the incidence or effects of sleep prevention (delay in first getting to sleep at night, and not being able to get back to sleep after being woken in the early morning). The applicants contended that sleep prevention has never been the subject of adequate scientific study. They submitted that basic factual information was needed to support an increase in night flights under the 1993 scheme, and that it was not assembled by the Government.

78. Although they accepted the general importance of Heathrow airport to the United Kingdom economy, the applicants contended that the Government had failed to adduce any evidence of the specific importance of night flights. They referred to the Oxford Economic Forecasting report of November 1999 on "The Contribution of the Aviation Industry to the UK Economy", and noted that the report, which considered the economic importance of Heathrow airport as a whole, did not consider separately the economic importance of night flights. They also submitted a report by Berkeley Hanover Consulting which challenged the validity of the Oxford report and its conclusions. The applicants contended, further, that night flights are of benefit only to the airlines which operate them, and that many other major European airports have greater restrictions on night flights than those in operation at Heathrow.

79. The applicants submitted that, in these circumstances, the reasons for the continuation of night flights adduced by the Government, both in 1993 and subsequently, were not relevant and sufficient, and that it was open to the Court to find a violation of Article 8 on this basis alone.

80. The applicants submitted, further, that the interference with their rights under Article 8 was not "in accordance with the law". They contended that, in order to be "in accordance with the law", there must be protection in domestic law against arbitrary interference with the rights guaranteed by Article 8 § 1 of the Convention; the law must be accessible, and its consequences must be foreseeable. These features were not present when the Government departed from its statement of policy "not to allow a worsening of noise at night, and ideally to improve it" (the 1993 Consultation Paper, paragraph 34), and was held by the High Court to have been "devious" in its attempt to conceal the departure (R. v. London Borough of Richmond and Others (No. 3) [1995] Environmental Law Reports 409).

81. Finally, the applicants contended that Article 8 is capable of conferring upon individuals a right to have essential environmental information communicated to them regarding the extent of an environmental threat to their moral and physical integrity (relying on the judgment of the Court in Guerra v. Italy, 19 February 1998, Reports of Judgments and Decisions, 1998-I, § 60), and contended that, a fortiori, Article 8 required that such information be assembled by the national authorities. They claimed that the increase in night flights under the 1993 scheme in the absence of proper information constituted in itself a breach of Article 8 of the Convention.

II. The Government

82. The Government acknowledged that the number of movements during the night quota period (11.30 p.m. to 6 a.m.) for the period from winter 1997/98 to summer 1999 was greater than that in 1992/93, and that the increase was greater if the period was taken to 6.30 a.m. They stated that the average QC per movement was significantly lower than the comparable figure prior to the introduction of the 1993 scheme, but that the quota count had increased due to the increased number of movements.

83. The Government's analysis of the current rate of arrivals during half hour slots from 4 a.m. to 6 a.m. was as follows:

04.00-
04.29 04.30-
04.59 05.00-
05.29 05.30-
05.59
Winter 0.57 5.14 7.29 3.43
Summer 0.14 2.29 5.86 4.86

They stated that arrivals before 4 a.m. were so few as to be statistically insignificant, and that average arrivals between 6 a.m. and 6.30 a.m. were 17.86 in the winter and 19.14 in the summer.

84. The Government submitted that the applicants were exposed to lower noise levels than the applicants in the previous cases in which complaints were made concerning aircraft noise at Heathrow airport and which were declared admissible by the Commission (Arrondelle v. the United Kingdom, application no. 7889/97, decision of 15 July 1980, Decision and Reports (DR) 26, p. 5; Baggs v. the United Kingdom, application no. 9310/81, decision of 16 October 1985, DR 44, p. 13; Rayner v. the United Kingdom, application no. 9310/81, decision of 17 July 1986, DR 47, p. 5). With the exception of one of the applicants, Mr Cavalla, at his former address, all the applicants were exposed to the same or lower noise levels than Mr Glass at his former address. Mr Glass's application was declared inadmissible (application no. 28485/95, decision of 3 December 1997). They submitted that, in these circumstances, there had been no interference with the applicants' rights under Article 8 § 1 of the Convention.

85. The Government submitted, alternatively, that in deciding to introduce the 1993 scheme they struck an appropriate and justified balance between the various interests involved and that, accordingly, any interference with the applicants' rights under Article 8 was justified. They referred to the 1992 sleep study which was in 1993, and remains, the most comprehensive study of its type. They stated that the 1992 sleep study was commissioned in July 1990 in order to inform the 1993 review of restrictions on night flights, but emphasised that it had been preceded by a number of earlier detailed reports into aircraft noise and sleep disturbance, also published by or on behalf of the Civil Aviation Authority. Further, the Government stated that research undertaken in the United States since the results of the 1992 sleep study were published had not cast any doubt on its validity.

86. The Government pointed out that, as they did not own or operate Heathrow airport or the aeroplanes which were causing the noise of which the applicants were complaining, their obligations under Article 8 were properly to be analysed as positive obligations. They submitted that, in these circumstances, they should be permitted a greater degree of leeway than in a case of direct interference by a public authority, although they recognised (referring to the Court's Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, § 41), that the applicable principles were broadly similar whichever analytical approach were to be adopted.

87. The Government referred to the series of noise mitigation and abatement measures which have been implemented at Heathrow airport or have otherwise contributed to the improvement of the noise climate around the airport, in addition to the restrictions on night flights. They provided detailed information in respect of each of these measures.

88. The Government also referred to the responses to the 1993 Consultation Paper received from trade and industry associations with an interest in air travel and from airlines, all of which emphasised the economic importance of night flights and provided detailed information and figures to support their responses. The Government submitted that night flights form an integral part of the global network of air services, and that they have a direct impact on the demand for daytime flights, due to operational constraints (geography, journey length time, number of time zones and direction of flight, turn-around time and efficient aircraft utilisation). A prohibition on night flights would therefore have severe implications for the competitiveness of Heathrow airport and of the airlines based there. These submissions were supported by the written comments received from British Airways.

89. The Government submitted that active and detailed consideration continues to be given to the issue of whether the research undertaken to date needs to be supplemented and, if so, in what areas and on what scientific basis. They pointed to the fact that they are continuing to fund research into sleep disturbance, in the form of further detailed fieldwork and a laboratory trial.

90. They contended that the central issue which they considered before deciding upon the 1993 scheme was the extent to which the economic well-being of the United Kingdom, as represented by the need to meet the requirements of the global market, justified the inconvenience of night noise to local residents. They submitted that before taking the relevant decisions, they had available, and considered, extensive and detailed information regarding the results of research into the effect of night noise on sleep, and regarding the economic importance of night flights at Heathrow airport. They claimed that it was not possible to separate the economic importance of night flights at Heathrow airport from the overall importance of Heathrow to the United Kingdom economy. They contended further that, given the range of interests involved, striking a balance is not a straightforward task, and that it is something which the national authorities are particularly well placed to do. Finally, the Government submitted that the balance which they had struck was a fair and reasonable one.

B. Comments from British Airways plc

91. In written comments, British Airways plc ("BA") addressed the commercial significance of and need to schedule flights which arrive at Heathrow airport at night. BA indicated that its comments were endorsed by BATA. BA stated that in the last two seasons (summer 1999 and winter 1999/2000), BA's night quota flights and those scheduled to operate in the period up to 6.30 a.m., together with their return leg flights, accounted for 16% of BA's total revenue. It stated, further, that the loss of some or all of its night flights would have a serious effect on its ability to compete, and that this effect would be disproportionately great due to both the damage to the network and the scheduling difficulties which it would entail.

92. BA submitted that if its flights which were scheduled to arrive before 7.15 a.m. had not been permitted to operate at Heathrow airport during 1999, it would have lost 49% of its long haul flight output at its main airport base. It would not have been possible to retime night flights into the day due to the lack of spare terminal capacity at Terminals 3 and 4 (the terminals for long haul flights at Heathrow airport) and the fact that no runway slots were available during the morning period. BA would have suffered a very significant loss of revenue, with consequent large-scale redundancies.

93. The report by Berkeley Hanover Consulting submitted by the applicants challenged the validity of the information provided by BA.

C. The Court's assessment

94. The Court considers that it is not possible to make a sensible comparison between the situation of the present applicants and that of the applicants in the previous cases referred to by the Government because, first, the present applicants complain specifically about night noise, whereas the earlier applicants complained generally about aircraft noise and, secondly, the present applicants complain largely about the increase in night noise which they say has occurred since the Government altered the restrictions on night noise in 1993, whereas the previous applications concerned noise levels prior to 1993. The Court concludes, therefore, that the outcome of previous applications is not relevant to the present case.

95. The Court notes that Heathrow airport and the aircraft which use it are not owned, controlled or operated by the Government or by any agency of the Government. The Court considers that, accordingly, the United Kingdom cannot be said to have "interfered" with the applicants' private or family life. Instead, the applicants' complaints fall to be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under Article 8 § 1 of the Convention (see the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, § 41, and the Guerra v. Italy judgment of 19 February 1998, Reports 1998-I, § 58).

96. Whatever analytical approach is adopted - the positive duty or an interference - the applicable principles regarding justification under Article 8 § 2 are broadly similar (the aforementioned Powell and Rayner v. the United Kingdom judgment loc. cit.). 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. 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 v. the United Kingdom judgment of 17 October 1986, Series A no. 106, § 37, as concerns Article 8 § 1, and the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, § 59, as concerns Article 8 § 2). Furthermore, even in relation to the positive obligations flowing from Article 8 § 1, in striking the required balance the aims mentioned in Article 8 § 2 may be of a certain relevance (see the Rees v. the United Kingdom judgment previously cited, loc. cit.; see also the Lopez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 54, § 51).

97. The Court would, however, underline that in striking the required balance, States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others. The Court recalls that in the above-mentioned Lopez Ostra v. Spain case, and notwithstanding the undoubted economic interest for the national economy of the tanneries concerned, 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 ..." (judgment of 9 December 1994, p. 55, § 55). It considers that States are required to minimise, as far as possible, the interference with these 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 order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which will, in reality, strike the right balance should precede the relevant project.

98. The Court notes that the Government have acknowledged that, while the average quota count per movement is now lower than the average prior to the introduction of the 1993 scheme, the increased number of movements has led to an increased quota count in comparison with the position in 1992/93. This means that, overall, the level of noise during the quota period (11.30 p.m. to 6 a.m.) has increased under the 1993 scheme. In addition, the Court notes the accounts given by the applicants of the disturbance to their sleep caused by the increase in noise from night flights at Heathrow airport from about 1993.

99. The Court must establish whether, in permitting increased levels of noise over the years since 1993, the Government respected their positive obligation to the applicants.

100. The Court notes that the Government had, when the 1993 scheme was being introduced and in the period whilst it was under judicial challenge, a certain amount of information as to the economic interest in night flights. In particular, they had the responses of industry and commerce to the Consultation Papers of January and November 1993, and of 1995. However, they do not appear to have carried out any research of their own as to the reality or extent of that economic interest.
101. It is true that a measure of further information as to the economic effects of night flights has now been assembled. In particular, BATA commissioned the Coopers & Lybrand report of July 1999 into the economic costs of night flying. This information, however, came too late to be considered in the process leading up to the 1993 Scheme (as reviewed in 1995). The Government acknowledged in the November 1998 Consultation Paper that no attempt was made to quantify the aviation and economic benefits in monetary terms (paragraph 53 above).

102. The Court concludes from the above that whilst it is, at the very least, likely that night flights contribute to a certain extent to the national economy as a whole, the importance of that contribution has never been assessed critically, whether by the Government directly or by independent research on their behalf.

103. As to the impact of the increased night flights on the applicants, the Court notes from the documents submitted that only limited research had been carried out into the nature of sleep disturbance and prevention when the 1993 Scheme was put in place. In particular, the 1992 sleep study, which was prepared as part of the internal Department of Transport review of the restrictions on night flights, was limited to sleep disturbance, and made no mention of the problem of sleep prevention - that is, the difficulties encountered by those who have been woken in falling asleep again. Further research is now under way, and while the conclusions may be valuable for future Schemes, the results will be too late to have any impact on the increase in night noise caused by the 1993 Scheme.

104. In determining the adequacy of the measures to protect the applicants' Article 8 rights, the Court must also have regard to the specific action which was taken to mitigate night noise nuisance as part of the 1993 Scheme, and to other action which was likely to alleviate the situation.
105. The Court notes that, although the 1993 Scheme did not achieve its stated aim of keeping overall noise levels below those in 1988, it represented an improvement over the proposals made in the 1993 Consultation Paper, in that no aircraft were exempt from the night restrictions (that is, even the quietest aircraft had a rating of 0.5 QC). Further, in the course of the challenges by way of judicial review to the 1993 Scheme, an overall maximum number of aircraft movements was set, and the Government did not accede to calls for large quotas and an earlier end to night quota restrictions.

106. However, the Court does not accept that these modest steps at improving the night noise climate are capable of constituting "the measures necessary" to protect the applicants' position. In particular, 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.

107. Having regard to the foregoing, and despite the margin of appreciation left to the respondent State, the Court considers that in implementing the 1993 scheme the State failed to strike a fair balance between the United Kingdom's economic well-being and the applicants' effective enjoyment of their right to respect for their homes and their private and family lives.

There has accordingly been a violation of Article 8.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

108. 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:

"Everyone whose rights and freedoms as set forth in this 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."

109. The Government disputed the applicants' contention that there had been a violation of Article 13.

A. Arguments of the parties

I. The applicants

110. The applicants contended 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 referred in particular to the fact that the issues arising under Article 8 could not be addressed in an application for judicial review, and that the arguments which had been raised by the local authorities concerning the substance of Article 8 in the four applications for judicial review were rejected on the grounds that they fell outside the scope of the court's power of review. They also referred to the high costs involved in bringing an application for judicial review.

II. The Government

111. The Government submitted that the applicants had no arguable claim of a violation of Article 8 and that, accordingly, no issue of entitlement to a remedy under Article 13 arose. Alternatively, they submitted that as the requirements of Article 13 are less strict than and are absorbed by those of Article 6, and as Article 6 would have applied had it not been for the exclusion of liability in section 76 of the 1982 Act, no separate issue arose under Article 13.

112. The Government contended that, in any event, the remedy of judicial review was available to the applicants. They referred to the wide margin of discretion available to the national authorities in relation to the decision to implement the 1993 scheme. They claimed that judicial review was an effective remedy because, although the English courts could not substitute their view as to where the appropriate balance lay between the competing interests concerned, the courts had power to set aside schemes on a variety of administrative law grounds (for example, irrationality, unlawfulness or patent unreasonableness). Indeed, the courts had exercised that power in relation to the 1993 scheme.
The Government contended, further, that judicial review would have allowed a challenge to be made on the basis of a failure to take relevant material into account, or the taking into account of irrelevant material. Finally, they observed that Article 8 was considered by the Court of Appeal in R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports, p. 1460, at p. 1481E, where it was held that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people's ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight.

B. The Court's assessment

113. 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, there has been a finding of a violation of Article 8, and the complaint under Article 13 must therefore be considered.

114. Section 76 of the 1982 Act prevents actions in nuisance in respect of excessive noise caused by aircraft at night. 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, however, in its judgment in the case of Smith and Grady v. the United Kingdom of 27 September 1999 (§§ 135 to 139, ECHR 1999-VI [Section 3]), 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.

115. The Court notes 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 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 allow consideration of whether the increase in night flights under the 1993 scheme represented a justifiable limitation on their right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow airport.

116. 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

117. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damages

118. The applicants submitted that they had each suffered considerable non-pecuniary damage as a result of noise caused by night flights and, in particular, the increase in night flights since 1993. They suggested that an award of 2,000 to 4,000 pounds sterling (GBP) each would be an appropriate starting point for an award of non-pecuniary damage.

119. The Government did not comment on the applicants' submissions.
120. Having regard to the accounts given by the applicants of the impact on each of them of the increase in night flights since 1993, and making its award on an equitable basis, the Court awards the applicants the sum of GBP 4,000 each in respect of non-pecuniary damage.

B. Costs and expenses

121. The applicants submitted a claim for costs and expenses of the proceedings before the Commission and the Court in the sum of GBP 153,867.56, plus GBP 24,929.55 value added tax ("VAT"). They submitted that although their application was almost identical to that made by Mr Glass (the annexes to which were simply reproduced for the purposes of the present application), they should recover the cost of preparation of the application because their representative had represented Mr Glass on a contingency (no-win no-fee) basis, and therefore had not recovered a fee for the work done on his behalf. They indicated that they had excluded from their claim costs incurred solely in connection with Mr Glass's application, and that they had further reduced the sums claimed by 25% in order to ensure that there was no element of double recovery.

122. The Government expressed some doubt as to whether the applicants were in fact liable for the costs, as the basis for the retention of the applicants' lawyers was not clear. In any event, they considered that the rates and the time charged were excessive, and that the travel expenses were, to a certain extent, not necessary. They put an appropriate figure for costs at GBP 56,739.44 including VAT. They subsequently added that they understood that up to GBP 80,000 had been raised by a pressure group to fund costs.

123. Making its assessment on an equitable basis, the Court awards the applicants by way of costs and expenses the global sum of GBP 70,000, including VAT.

C. Default interest

124. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum.

FOR THESE REASONS, THE COURT

1. Holds by five votes to two that there has been a violation of Article 8 of the Convention;

2. Holds by six votes to one that there has been a violation of Article 13 of the Convention;

3. Holds by six votes to one

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(i) in respect of non-pecuniary damage, 4,000 (four thousand) pounds sterling each;

(ii) for costs and expenses, 70,000 (seventy thousand) pounds sterling, including any value added tax that may be chargeable;

(b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement;

4. Dismisses unanimously the remainder of the applicants' claim for just satisfaction.

Done in English and notified in writing on 2 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. DOLLÉ J.-P. COSTA
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:

(a) separate opinion of Mr Costa;
(b) partly dissenting opinion of Mrs Greve;
(c) dissenting opinion of Sir Brian Kerr.
J.-P.C.
S.D.

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.