AS TO THE ADMISSIBILITY OF
Application No. 28485/95
by Gordon GLASS
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 September 1994
by Gordon GLASS against the United Kingdom and registered on
9 September 1995 under file No. 28485/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
7 February 1997 and the observations in reply submitted by the
applicant on 25 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1949. He lives in Bath
and is represented before the Commission by Mr. R. Buxton, an
environmental lawyer who practices in Cambridge. The facts of the
application, as submitted by the parties, may be summarised as follows.
A. The specific circumstances of the case
The applicant bought a house in Kew, in the London Borough of
Richmond upon Thames in 1986. At the time, he did not perceive noise
from Heathrow Airport, about 5 - 6 miles away, as a problem.
According to the applicant, there was a considerable increase in
flights, and in particular in night flights. The applicant ascribes the
increase to a series of administrative decisions on the part of various
authorities, and to a growth in air traffic which has affected flight
patterns. The night is generally free of aircraft noise for about
5 hours, although the period has been as short as 2 hours. After the
first aircraft, at about 4.30 a.m., there is a flight approximately
every 15 - 20 minutes, and from 5.50 a.m. there is a flight
approximately every 90 seconds. This frequency continues for most of
the day and possibly to around 1.00 a.m. the next morning.
The Government do not accept the applicant's information on
flight frequencies as accurate. They consider that the perceived
increase in night flights is probably due to the fact that landings
form a higher proportion of nights than hitherto, and that, because of
the prevailing westerly winds, they usually overfly Kew and Richmond
when landing rather than overflying other areas when taking off. They
state that the suggestion that there are some 40 movements per hour
from 5.50 a.m. is also inaccurate: from a recent reply to a
parliamentary question, the average from 6.00 a.m. to 7.00 a.m. is some
30 movements per hour, and there are few occasions when flights
continue beyond 11.00 p.m. at the frequency suggested by the applicant.
Unless flights are exceptionally delayed, there are about 6 movements
between 11.00 p.m. and midnight.
In 1995 the applicant moved to what he hoped would be a quieter
part of Richmond, but the applicant's new house, too, was subject to
a large number of flights.
The applicant entered into correspondence with his local
authority in connection with a decision to suspend the alternation of
runways at Heathrow whilst repair works were carried out at other
runways. The effect of this suspension was to increase traffic passing
over the applicant's house for a period of some six weeks.
On 13 July 1995, the local authority informed the applicant that
because, in the light of Section 76 (1) of the Civil Aviation Act 1982,
the flight of aircraft could not constitute a nuisance, the council
could not exercise their statutory powers under the Environmental
Protection Act 1990 or other legislation.
On 24 July 1995 the applicant applied to the local magistrates'
court for a nuisance order against the Civil Aviation Authority under
the Environmental Protection Act 1990. The magistrates' clerk replied
on 25 July 1995 that "Redress [could] not be granted in view of the
exception contained in Section 79 (1) (6) of the [Environmental
Protection Act] 1990 ...".
In September 1995 the applicant moved from Kew to Bath, where he
had been renting a flat since October 1994.
B. The relevant domestic law
Section 76 (1) of the Civil Aviation Act 1982 ("the 1982 Act")
provides, so far as relevant, as follows:
"No action shall lie in respect of trespass or in respect of
nuisance, by reason only of the flight of aircraft over any
property at a height above the ground which, having regard to
wind, weather and all the circumstances of the case is
reasonable, or the ordinary incidents of such flights, so long
as the provisions of any Air Navigation Order and of any orders
under Section 62 above have been duly complied with and there has
been no breach of Section 81 above."
Air Navigation Orders, made under Section 60 of the 1982 Act,
provide for Orders in Council to be made for the regulation of
aviation. Orders have been made to deal with, amongst other matters,
engine emissions, noise certification and compensation for noise
nuisance. Section 62 of the 1982 Act deals with control of aviation in
time of war or emergency.
Section 81 provides for an offence of dangerous flying.
Section 79 (1) of the Environmental Protection Act 1990 defines
"statutory nuisances", and imposes a duty on local authorities to
inspect their areas and to detect and deal with statutory nuisances.
Section 79 (1) (g) includes "noise emitted from premises so as to be
prejudicial to health or a nuisance" within the definition. By virtue
of Section 79 (6), Section 79 (1) (g) "does not apply to noise caused
by aircraft other than model aircraft".
Section 82 of the Environmental Protection Act 1990 gives
magistrates power to act on a complaint from any person aggrieved by
the existence of a statutory nuisance. Where satisfied that the alleged
nuisance exists, the magistrates "shall make an order ... requiring the
defendant to abate the nuisance ... [and/or] ... prohibiting a
recurrence of the nuisance". The court may also fine the defendant.
COMPLAINTS
The applicant complains that the noise generated at his home by
aircraft from Heathrow airport, and his inability to do anything about
it, violate the Convention. He alleges a violation of Article 6 of the
Convention, and in his observations in reply (see below) further
expanded his original arguments under Articles 8 and 13 of the
Convention, and under Article 1 of Protocol No. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 September 1994 and
registered on 9 September 1995.
On 16 October 1996 the Commission decided to communicate the
applicant's complaint concerning his access to court under Article 6
of the Convention to the respondent Government and to declare the
remainder of the application inadmissible. The Government's written
observations were submitted on 7 February 1997, after an extension of
the time-limit fixed for that purpose. The applicant replied on 25
April 1997.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention. He complains that the statutory limitations on bringing an
action in respect of aircraft noise limit his access to court in a
manner incompatible with Article 6 para. 1 (Art. 6-1) of the
Convention. Article 6 (Art. 6) provides, so far as relevant, as follows:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ..."
The Government recall that in Powell and Rayner (Eur. Court HR,
Powell and Rayner v. the United Kingdom judgment of 21 February 1990,
Series A no. 172) the Court found that Section 76 (1) of the Civil
Aviation Act 1982 ("the 1982 Act") excludes liability in nuisance with
regard to the flight of aircraft in certain circumstances, "with the
result that the applicants cannot claim to have a substantive right
under English law ..." (p. 16, para. 36). The Court found that
Article 6 (Art. 6) did not apply. The Government further note that, in
connection with the proportionality of Section 76 (1) to the aim being
pursued, the Court found, in the context of Article 8 (Art. 8) of the
Convention, that the limitations on the applicants' access to redress
did not amount to an "arguable claim" to be a victim of a violation of
Article 8 (Art. 8) of the Convention (pp. 18-20, paras. 40-46).
The Government consider that the Commission should give the same
answers to issues raised in connection with Article 6 (Art. 6) and
Section 76 (1) of the 1982 Act as the Court gave in Powell and Rayner,
and that the issues raised by Section 79 of the Environmental
Protection Act 1990 ("the 1990 Act) are exactly the same, on analysis.
Even if Article 6 (Art. 6) were to apply to the proceedings which
the applicant attempted to bring (which they do not accept), the
Government consider that the limitations on access to court which are
created by Section 79 of the 1990 Act are compatible with Article 6
(Art. 6) for the same reasons as the Court gave under Article 8
(Art. 8) in the case of Powell and Rayner - that is, the exclusion
pursues and is proportionate to the legitimate aim of securing the safe
and effective regulation of civil aviation, and not hindering the
development of international air transport; problems of aircraft noise
are better dealt with by specific regulatory measures to ensure that
aircraft noise is minimised and a proper balance struck between the
various interests; specific schemes exist which are designed to
ameliorate and compensate for the effects of aircraft noise. The
Government, by way of Annexes to their observations, submit details of
the development of Heathrow and of the principal noise mitigation,
abatement and compensation schemes.
The applicant claims that the bar to litigation in Section 76 of
the 1982 Act is disproportionate and goes further than necessary to
support a legitimate aim, and that Section 79 of the 1990 Act goes even
further. He points out that a number of the regulatory controls which
the Government say are effective at Heathrow do not apply at all in the
context of general aviation at smaller airfields in the United Kingdom.
He also complains that Article 6 (Art. 6) is violated because there is
no right to a hearing in relation to the establishment or review of the
regulatory controls which the Government say are in place to compensate
for the Section 76 bar. With particular reference to controls on night
flights, the applicant refers to a series of cases brought by the
London Borough of Richmond which challenged the legality of night
flying controls. In three consecutive cases, the Government's actions
were found to be unlawful, and in the final one the Government's case
was accepted (R v. Secretary of State for Transport, ex parte Richmond
upon Thames London Borough Council and others, [1994] 1 All ER 377; the
same (No. 2), [1995] Env. LR 390; the same (No. 3), [1995] Env. LR 409,
and the same (No. 4) [1996] 1 WLR 1460). The applicant claims that the
cases show that the Government exceeded its margin of appreciation in
making decisions over night flying controls, taking decisions without
adequate reasons and in bad faith.
The applicant also considers that, in the light of the above
series of domestic cases, the view of the Court in Powell and Rayner
should be reconsidered.
The Commission recalls that Article 6 (Art. 6) of the Convention
only applies where there is a dispute over a "right" which can be said,
at least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious; it may relate not only to the
existence of a right, but also to its scope and the manner of its
exercise, and the outcome of the proceedings must be directly decisive
for the right in question. Finally, the right must be civil in
character (Eur. Court HR, M.S. v. Sweden judgment of 27 August 1997,
Reports 1997-IV, No. 44, para. 47).
In addition to the above requirements which must be met before
Article 6 (Art. 6) applies, the Convention organs have developed case-
law according to which questions of access to court may arise in
connection with bars to having a determination of an issue, whether
contained in procedural or substantive law (see for example No.
23452/94, Osman and Osman v. the United Kingdom, Comm. Report 1.7.97,
pending before the European Court of Human Rights, and the case-law
referred to there). In that case, the Commission found that the
applicants' claim in negligence was arguably based on an existing right
in domestic law, and that the judicial development of an immunity for
the police amounted to a restriction on their access to court in the
adjudication of their civil claims (para. 123). The Commission then
proceeded to assess whether the limitation was proportionate to the aim
pursued, concluding that it was not.
In the present case, the applicant's action in statutory nuisance
was prevented by the terms of the statute: statutory nuisance was
defined as "noise emanating from premises" and, for the avoidance of
doubt, "noise caused by aircraft other than model aircraft" was
excluded from the definition of "noise emanating from premises". There
was no question of an action which had commenced being prevented by the
executive (see Nos. 20390/92 and 21322/93, Tinnelly and McElduff v. the
United Kingdom, Comm. Report 8.4.97, pending before the European Court
of Human Rights), nor did the case concern an immunity which had been
developed by the courts (for a case involving an action which was
brought, see the above-mentioned Osman case; for a case in which no
action was in fact brought, see Eur. Court HR, Fayed v. the United
Kingdom judgment of 21 September 1994, Series A no. 294-B). Further,
the present case does not concern a limitation on a general right to
bring proceedings (as in the above-mentioned Osman case, or Dyer v. the
United Kingdom, No. 10475/83, Dec. 9.10.84, D.R. 39, p. 246 at pp. 251-
252). The Commission therefore concludes that, given the clarity
with which the applicant's proposed action for statutory nuisance was
excluded from the scope of the concept of "statutory nuisance", the
claims asserted by the applicant did not concern a "right" which could
arguably be said to be recognised under the law of the United Kingdom
(cf. Masson and van Zon v. the Netherlands judgment of 28 September
1995, Series A no. 327, p. 20, para. 52; Gustafsson v. Sweden judgment
of 25 April 1996, Reports 1996-II, No. 9, p. 659, para. 66).
Article 6 (Art. 6) did not therefore apply to the proceedings
which the applicant tried to bring before the magistrates in respect
of statutory nuisance.
The applicant also complains about the limitations on access to
court created by Section 76 of the 1982 Act. The Commission recalls
that the European Court of Human Rights has already considered this
provision in the above-mentioned case of Powell and Rayner (pp. 15-16,
paras. 34-36). The Court found that to the extent that Section 76
excludes liability in nuisance, Article 6 (Art. 6) does not apply as
the applicants could not claim to have a substantive right to relief.
The Court also noted that the exclusion in Section 76 was not absolute,
and to the extent that the exclusion did not apply, the applicants had
access to the domestic courts.
Assuming that the applicant is entitled to claim to be a victim
of a violation of Article 6 (Art. 6) in connection with the operation
of Section 76 of the 1982 Act, the Commission finds no reason to depart
from the judgment of the Court in the case of Powell and Rayner.
Finally, the applicant complains that there is no right to a
hearing in relation to the establishment or review of the regulatory
controls which the Government say are in place to compensate for the
Section 76 bar.
The Commission recalls that Article 6 (Art. 6) of the Convention
does not necessarily apply to challenges to individual measures with
a tenuous connection with the right asserted (see Eur. Court HR,
Balmer-Schafroth and others v. Switzerland judgment of 26 August 1997,
Reports 1997-IV, No. 43, paras. 30-40), and the Commission considers
that the same applies to challenges to the regulatory controls referred
to by the applicant. In any event, the Commission notes that the
Richmond upon Thames London Borough Council was able to bring
proceedings in which it could make precisely such a challenge, and
there does not appear to be any reason why the applicant, as a person
aggrieved by the allegedly unlawful controls, could not make a similar
challenge himself.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant, in his observations in reply, also repeats and
expands the complaints he made in his original application.
The Commission recalls that in its Partial Decision of 16 October
1996, it declared inadmissible the applicant's complaints concerning
the noise created at his house by aircraft using Heathrow airport.
The Commission recalls that by virtue of Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention, it may not deal with any petition
which is substantially the same as a matter which has already been
examined by it. Whilst the applicant brings further legal argument in
support of those parts of the application which have been declared
inadmissible, the factual basis for those arguments - the noise
generated at the applicant's house by aircraft using Heathrow airport -
is the same.
These complaints may not therefore be considered by virtue of
Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy