HATTON AND OTHERS v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36022/97
by Ruth HATTON and Others
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 16 May 2000 as a Chamber composed of

MrJ.-P. Costa, President,

MrL. Loucaides,

MrP. Kūris,

MrsF. Tulkens,

MrK. Jungwiert

Mrs H.S. Greve, judges,

SirBrian Kerr, ad hoc judge,

andMrsS. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 6 May 1997 and registered on 12 May 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the parties’ oral submissions at the hearing on 16 May 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants are British nationals and live in the area surrounding Heathrow airport. They are represented before the Court by Mr Richard Buxton, a lawyer practising in Cambridge, England. The facts of the case, as submitted by the parties, may be summarised as follows.

A.Particular circumstances of the case

Background

Restrictions on night flights at Heathrow were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998.

1987 Consultation Paper

A Consultation Paper was published by the United Kingdom Government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided Leq were not increased (dBA Leq metric is a measurement of noise exposure). In considering the needs of the airlines, the Consultation Paper stated that there was some demand for flights at night, to increase the range of services open to travellers to and from more distant parts of the world; that the case for increasing the night quota on the grounds that capacity was getting scarce during the day was not a strong one; and that even very large increases in quotas would make only a marginal contribution to Heathrow’s daily capacity, such that doubling the quota, for example, would only increase the total number of flights in a 24-hour period by 2%.

In relation to the need for night flights, the Consultation Paper indicated that there were two reasons for not considering a ban on night flights: firstly, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; and secondly, that a ban on night flights would damage the status of Heathrow airport as a 24-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of European airports. The Consultation Paper also stated that the then current summer and winter quotas at Heathrow were not fully used and that, as they stood, they would allow an increase in night flights over then current numbers. The Government were not convinced that the benefits to the airlines of the extra flights would justify the disturbance they would cause and, further, their objective of ensuring that the night noise climate continued to improve would not be met.

Restrictions on night noise 1988 to 1993

From 1988 to 1993, night flying was regulated solely by means of a limitation upon the number of take-offs and landings permitted at night. The hours of restriction were as follows:

Summer11.30 p.m. to 6 a.m. weekdays

11.30 p.m. to 6 a.m. Sundays landings

11.30 p.m. to 8 a.m. Sundays take-offs

Winter11.30 p.m. to 6.30 a.m. weekdays

11.30 p.m. to 8 a.m. Sundays take-offs and landings

The 1992 Sleep Disturbance Study

In December 1992, the Government published a report summarising the findings of a field study of aircraft noise and sleep disturbance which had been undertaken by the Civil Aviation Authority (“the 1992 sleep study”).

1993 Consultation Paper

In January 1993 the Government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. In considering the demand for night flights, the Consultation Paper made reference to the fact that if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs higher than competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements. Airports and operators abroad could in many cases offer attractive alternatives, for example Charles de Gaulle airport in Paris, which had no restrictions on night flights, Schiphol in the Netherlands and Frankfurt in Germany, which had less onerous restrictions than Heathrow. If convenient scheduled services on some long haul routes could not be operated to Heathrow, Gatwick or Stansted, those services would go to the other airports mentioned.

The Consultation Paper also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price sensitive market. As a result, United Kingdom airports and airlines would lose business if prevented (by unduly restrictive night limitations) from competing on reasonably equivalent terms. The ramifications would be much wider than just the immediate lost business, in that the status of United Kingdom airports and airlines would be diminished, which would in turn diminish the attractions of London and the United Kingdom generally for investment and international commerce. These secondary effects might not be immediate but would be damaging in the long term to jobs and prosperity.

Further, the Consultation Paper stated that both scheduled and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings. At Heathrow, flights from the Asia-Pacific region, which was a major growth area, which previously landed early in the day-time after stopping en route, were able to complete their journeys non-stop, and as a consequence were seeking to land during the night period. There were no commercially sensible alternative timings for such flights. Similarly, continued growth in the North American market would also mean some operators seeking additional slots towards the end of the night period.

The Consultation Paper also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended upon high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, which could only be fitted in using movements at night.

Finally, in reference to the demand for night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and referred to the fact that all-cargo movements are banned, whether arriving or departing, for much of the day at Heathrow airport.

The Consultation Paper referred to the 1992 sleep study. It stated that the Government had commissioned research into sleep disturbance in July 1990 in order to inform the 1993 review, and that the main purpose of the study was to provide objective information on sleep disturbance from aircraft noise. The fieldwork was carried out between March and September 1991. Scientific measurements of disturbance were obtained from subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester (Manchester airport was included in the study because it was the third largest in the United Kingdom and had the highest number of night flights in the summer season). It was found that with noise levels in the range of 80-95 dBA the likelihood of the average person being awakened was about 1 in 75. The Consultation Paper also stated that 80 dBA outside the home was about the same noise as would be heard at nearly 500 feet (152 metres) from an Intercity train travelling at 95 mph (153 k/h). The study also found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people’s health or well-being.

The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to improve it, it was proposed that the quota for the next 5 years based on the new system should be set at a level so as to keep overall noise levels below those in 1988.

The 1993 Scheme

On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”).

The 1993 Scheme introduced a noise quota scheme for the night quota period. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period”, from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (8 QC - quota count - or 16 QC) or to land (16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter).

Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Heathrow airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement. The noise level of the quietest aircraft operating at night (those rated at 0.5QC) was generally below 90 EPNdB (EPNdB is a specialised noise unit used for aircraft noise certification testing, 3 EPNdB representing a doubling of noise energy), which equated to a peak noise level of about 75 dBA. The ground area affected by aircraft noise (commonly referred to as an aeroplane’s “footprint”) is much smaller when an aeroplane is landing than when it is taking off. For this reason, and in order to assign a single quota count to each type of aeroplane whether taking off or landing, the noise generated by each on landing was artificially reduced by 9 EPNdB for the purposes of allocating its quota count.

The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the Government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper.

The local authorities for the areas around the three main London airports sought judicial  review of the Secretary of State’s decision to introduce the 1993 Scheme, making four consecutive applications and appealing twice to the Court of Appeal. In consequence of the various judgments delivered by the High Court and Court of Appeal, the Government consulted on revised proposals in October and November 1993; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995; and issued a supplement to the March 1995 Consultation Paper in June 1995. The June 1995 supplement stated that the Secretary of State’s policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged this was contrary to Government policy, as expressed at paragraph 34 of the 1993 Consultation Paper.

On 16 August 1995, the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions régime would remain as previously announced. In July 1996, the Court of Appeal decided 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 nights because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational. On 12 November 1996, the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal.

The movement limits for Heathrow under the 1993 Scheme, as introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994-1995 to 1997-1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks change from GMT to BST). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (ie from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (ie from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period.

The 1998 Consultation Papers

In 1998, the Government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted. In February 1998, a preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper (to meet demand from long-haul flights from the Asia-Pacific region, from the Middle East and from North America; to facilitate the commercial viability of charter companies by allowing a high utilisation of their aircraft; some all-cargo flights took place at night because they were banned during the day at Heathrow; other all-cargo flights involved time-sensitive deliveries such as newspapers and perishable goods; and night flights were also used quite extensively by aircraft carrying mail and small parcels, and many of the deliveries to Europe and more distant destinations could not be transported by alternative means (ie road or rail)).

In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom’s most successful firms; that air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success.

The Preliminary Consultation Paper stated that the pattern of scheduling movements which cross time zones, particularly flights from the Asia-Pacific region, was a significant factor in arrivals reaching Heathrow airport from about 4.30 a.m. onwards. The Consultation Paper indicated that the night curfew at Hong Kong (Kai Tak) airport had contributed to this but that it was far from being the only reason for it, and that when the new Hong Kong airport at Chep Lap Kok became operational the pattern of movements was unlikely to change radically. At that stage, Tokyo Narita airport would become the only far eastern airport from which aircraft were operating into Heathrow at the date of the Consultation Paper which had a night-time ban.

The Government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation. On 10 September 1998, the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1999.

In November 1998, the Government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive Governments that policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that ‘interference with sleep’ was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep again in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full scale study of either sleep prevention or total sleep loss.

The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss.

The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they are of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; encouraging the use of quieter aircraft at night; to put in place at Heathrow, for the night quota period (11.30 p.m. to 6.00 a.m.) arrangements which would bring about further improvements in the night noise climate around the airport over time; to update the arrangements as appropriate.

The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period (11.30 p.m. to 6.00 a.m.), based on the total of the quota count ratings of aircraft counted against the noise quota; but that there had probably been a deterioration over the full night period between 11.00 p.m. and 7.00 a.m. as a result of the growth in traffic between 6.00 a.m. and 7.00 a.m..

The Consultation Paper stated that long-haul flights, which dominated the night period at Heathrow, generally cross several time zones, which limited their scheduling window and the scope for making connections with regional services at each end. Services to European destinations from airports in the Far East were generally scheduled to depart later in the day to allow for regional feeder connections, and were scheduled to arrive in Europe in the morning to allow for onward connections. As a result, there was strong customer preference for overnight long-haul services from the Asia-Pacific region.

The Consultation Paper stated that if services to London were forced to leave airports like Hong Kong significantly later than current timings (in the early hours of the morning in order to arrive in London after the night period), those operators would be placed at a significant disadvantage in competing with more attractively timed services to and via other European capitals. The Consultation Paper noted, in this respect, that local time in continental European cities is one hour ahead of London, and that fewer flights from the Far East therefore arrived before 6.00 a.m. local time. Further, all other principal European hub airports had less severe restrictions than those which were currently imposed on the three designated London airports. Paris (Charles de Gaulle) and Amsterdam (Schiphol) had no restrictions at all on the total numbers of Chapter 3 aircraft (the International Civil Aviation Organisation standard) which could operate at night, while Frankfurt had restrictions on landings by Chapter 3 aircraft between 1.00 a.m. and 4.00 a.m.. There were few commercially viable alternative timings during the day for most of the long haul services that currently were arriving in the early morning period, and the limited alternatives that there were at Heathrow would require other services to be displaced.

The Consultation Paper indicated that the Government had not attempted to quantify the aviation and economic benefits of night flights in monetary terms. This was because of the difficulties of obtaining reliable and impartial data on passenger and economic benefits (some of which was commercially sensitive) and modelling these complex interactions. The British Air Transport Association (“BATA”) had submitted with its response to the Preliminary Consultation Paper a report examining the implications for airlines and passengers of each of a range of possible options should additional or existing night flights not be possible. It estimated the value of an additional daily long haul scheduled night flight at Heathrow to be £20m to £30m per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA’s figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts.

The Consultation Paper stated that, in formulating their proposals, the Government had taken into account both BATA’s figures and the fact that it was not possible for the Government to test the estimates or the assumptions made by BATA.  Any value attached to a “marginal” night flight had to be weighed against the environmental disbenefits. These could not be estimated in monetary terms, but it was possible, drawing on the 1992 sleep study, to estimate the numbers of people likely to be awakened. The Consultation Paper concluded that in forming its proposals, the Government must take into account on the one hand the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night; that users could also suffer; and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the Government’s view, would protect local people from excessive aircraft noise at night.

The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the AC classifications of individual aircraft and, if this produced significant reclassifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of Chapter 2 civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11.00 p.m. to 7.00 a.m. and the night quota period as 11.30 p.m. to 6.00 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16; to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (ie after completion of the compulsory Chapter 2 phase out).

The Consultation Paper stated that since the introduction of the 1993 scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review.

Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on preferential use of Heathrow’s runways at night.

The 1999 Scheme

On 10 June 1999, the Government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99.

The 1999 Scheme came into effect on 31 October 1999.

Events following the introduction of the 1999 Scheme

On 10 November 1999, a report was published on “The Contribution of the Aviation Industry to the UK Economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, and by the Government.

On 23 November 1999, the Government announced its decision that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further consultation paper concerning proposals for changes to the preferential use of Heathrow’s runways at night.

Effect of noise on the applicants

The noise levels experienced by each applicant, and the effect on each of them individually, are as follows:

Ruth Hatton was born in 1963 and lives in East Sheen with her husband and two children. Since 1993, when the level of night noise increased, Mrs Hatton has found the noise levels to be “intolerable” at night. The noise levels are greater when aircraft are landing at Heathrow from the east. When this happens, Mrs Hatton cannot sleep without ear plugs and her children are frequently woken up before 6 a.m., and sometimes before 5 a.m. If Mrs Hatton does not wear ear plugs, she is woken by aircraft activity at around 4 a.m. She is sometimes able to go back to sleep, but finds it impossible to go back to sleep once the “early morning bombardment” starts which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she is woken in this manner, Mrs Hatton tends to suffer from a headache for the rest of the day. When aircraft are landing from the west the noise levels are lower, and Mrs Hatton’s children sleep much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Mrs Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants.

Peter Thake was born in 1965 and lives in Hounslow with his partner. He has lived at his present address since 1990. His home is situated approximately 4 km from Heathrow airport and slightly to the north of the southern flight path. In about 1993, the level of disturbance at night from aircraft noise increased notably, and Mr Thake began to be woken or kept awake at night by aircraft noise. Mr Thake finds it particularly difficult to sleep in warmer weather, when open windows increase the disturbance from aircraft noise, and closed windows make it too hot to sleep. Mr Thake finds it difficult to go back to sleep after being woken by aircraft noise early in the morning. He is sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m.. Mr Thake is also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line, on 19 occasions. Although his family, friends, and place of work are in the Heathrow area, Mr Thake has considered moving away from the area to escape the noise, but is unable to afford to do so due to negative equity in his property and the blighting effect of the noise levels on the value of his home.

John Hartley was born in 1948 and lives in Richmond with his wife. He has lived at his present address since 1989. His house is about 8 miles (13 km) from Heathrow airport, and is situated almost directly under the approach to the airport’s southern runway. The windows of the house are double-glazed. From 1993, Mr Hartley noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). The British Airports Authority does not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it does during the day, and the airport regularly has aircraft landing from the east on both runways. When the wind blows from the west and aeroplanes are landing from the east, which is about 70% of the time, aircraft noise continues until about midnight, so that Mr Hartley is unable to go to sleep earlier than midnight, and he then finds it impossible to sleep after 6 a.m. on any day of the week, and is usually disturbed by aircraft noise at about 5 a.m., after which he finds he cannot go back to sleep. When the aeroplanes are landing from the west, Mr Hartley is able to sleep.

Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. Ms Edmund’s house is approximately one kilometre from the Heathrow flight path. Before 1993, Ms Edmunds was often woken by aircraft noise at around 6 a.m.. Since 1993, she has tended to be woken at around 4 a.m.. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. Ms Edmunds suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night, and although she was advised by a doctor to stop using them, she continues to do so in order to be able to sleep. Ms Edmunds is also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds’s children are both disturbed by aircraft noise.

John Cavalla was born in 1925. From 1970 to 1996, he lived in Isleworth. Mr Cavalla lives with his wife. Mr Cavalla’s house in Isleworth was directly under the flight path of the northern runway at Heathrow airport. In the early 1990s, the noise climate deteriorated markedly, partly as a result of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla noticed that air traffic increased dramatically between 6.00 a.m. and 7.00 a.m. as a result of the shortening of the night quota period. Mr Cavalla found that, once woken by an aircraft arriving at Heathrow airport in the early morning, he was unable to go back to sleep. In 1996, Mr Cavalla and his wife moved to Sunbury in order to escape the aircraft noise. The Government in their submissions state that after moving house, Mr Cavalla did not live under approach tracks for landing aircraft, and that aircraft used the departure route passing over his new residence only very rarely at night. Consequently, Mr Cavalla would only very rarely have been exposed to any night-time aircraft noise following his move.

Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of his sons. Mr Thomas has lived at his present address since 1975. His house lies between the north and south Heathrow flight paths. Aircraft pass overhead on seven or eight days out of every ten, when the prevailing wind is from the west. Mr Thomas noticed a sudden increase in night disturbance in 1993. Mr Thomas finds that he wakes at 4.30 a.m., when three or four large aircraft tend to arrive within minutes of each other. Once he is awake, one large aeroplane arriving every half an hour is sufficient to keep him awake until 6.00 a.m. or 6.30 a.m., when the aeroplanes start arriving at frequencies of up to one a minute until about 11 p.m..

Richard Bird was born in 1933 and has lived in Windsor for 30 years. His house is directly under the westerly flight path to Heathrow airport. In recent years, and particularly from 1993, he has suffered from intrusive aircraft noise at night. Although Mr Bird has observed that both take-offs and landings have continued later and later into the evenings, the main problem is caused by the noise of early morning landings. He states that on very many occasions he has been woken at 4.30 a.m. and 5 a.m. by incoming aircraft, and has then been unable to get back to sleep, and felt extremely tired later in the day. He would have moved house to get away from the noise, but his children and grandchildren live in the area.

Tony Anderson was born in 1932 and lives in Touchen End, which is under the approach to runway 09L at Heathrow airport, and approximately 9 or 10 nautical miles from the runway. Mr Anderson has lived in Touchen End since 1963. By 1994, Mr Anderson began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow airport.

B.Relevant domestic law

Civil Aviation Act 1982 ("the 1982 Act")

Section 76 (1) of the 1982 Act provides, so far as relevant:

“No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an 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 flight, so long as the provisions of any Air Navigation Order ... have been duly complied with ...”

Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance.

Section 78 (3) of the 1982 Act provides, so far as relevant:

“If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say-

(a)prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified;

(b)specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified;               ....”

Restrictions on night flights at Heathrow airport are imposed by means of notices published by the Secretary of State under section 78 (3) of the 1982 Act.

COMPLAINTS

The applicants allege violations of Articles 6, 8 and 13 of the Convention.

Under Article 6 of the Convention, the applicants complain that section 76 of the Civil Aviation Act 1982 acts as a procedural bar to bringing a claim before the courts in respect of unreasonable aircraft noise. The applicants state that there was no fair hearing or impartial public enquiry process to examine the Government's regulatory schemes. The applicants contend that their rights under Article 8 were violated, and that they did not have access to a fair and public hearing before an independent and impartial tribunal in respect of the violation of those rights, contrary to Article 6 of the Convention.

The applicants contend that the noise from aircraft which regularly disturbed their sleep in the early hours, constituted an interference with their right to respect for their private and family lives and their homes, contrary to Article 8 of the Convention. They complain that the Government exercised their margin of appreciation improperly and dishonestly, as they imposed a new scheme relating to night flights that, contrary to published policy, led to an increase in night-time noise and that, further, the Government failed to give any justifications for this new scheme.

The applicants complain under Article 13 of the Convention that the remedy of judicial review is an inadequate remedy as it fails to examine the merits of decisions by public authorities and is prohibitively expensive to individuals. The applicants also complain that the failure by the House of Lords to give reasons for their refusal of leave to appeal in respect of one of the applications for judicial review made by the local authorities rendered the remedy of judicial review ineffective for the purposes of Article 13.

THE LAW

1.The applicants complain of a violation of Article 6 of the Convention on the ground that section 76 of the Civil Aviation Act 1982 acts as a procedural bar to bringing a claim before the domestic courts in respect of unreasonable aircraft noise.

Article 6 of the Convention 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 submit that the issues raised by this complaint were considered in detail by the Commission, and rejected, in the Glass case, principally on the basis that there was no substantive right under domestic law. They contend that no “civil rights” have been interfered with and determined by the introduction of the 1993 scheme, within the meaning of Article 6 § 1 of the Convention. The Government contend that the Court should give the same answers to issues raised in connection with Article 6 and section 76 (1) of the 1982 Act as the Commission gave in Glass.

The Court recalls that it has already considered section 76 of the Civil Aviation Act 1982 in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, pp. 15-16, §§ 34-36). The Court found that to the extent that section 76 excludes liability in nuisance, Article 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.

The Court notes that the English Court of Appeal stated, in considering the fourth of the applications for judicial review of the 1993 Scheme brought by the local authorities, that the effect of section 76 of the CAA 1982 was to remove a right which had existed under the common law (R. v. Secretary of State for Transport, ex parte London Borough of Richmond-upon-Thames and others (No. 4) [1996] 1 Weekly Law Reports 1460, at 1465H).

The Court notes that the applicants do not appear to have attempted to bring any proceedings to which section 76 could apply. However, even assuming that they are entitled to claim to be victims of a violation of Article 6 in connection with the operation of section 76 of the 1982 Act, the Court finds no reason to depart from its judgment in the case of Powell and Rayner.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.The applicants allege a violation of Article 8 of the Convention by virtue of the increase in the level of noise caused at their homes by aircraft using Heathrow airport at night after the introduction of the 1993 scheme. They contend that there is no effective remedy for the violation, contrary to Article 13 of the Convention.

Articles 8 and 13 of the Convention provide, so far as relevant, as follows:

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

2.  There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and necessary in a democratic society in the interests of  … the economic well-being of the country … or for the protection of the rights and freedoms of others.”

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority …”

The Government acknowledge that the number of movements during the night quota period (11.30 p.m. to 6.00 a.m.) for the period from winter 1997/98 to summer 1999 was greater than that in 1992/92, 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.

The Government’s analysis of the current rate of arrivals during half hour slots from 4.00 a.m. to 6.00 a.m. is 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

The Government state that arrivals before 4.00 a.m. are so few as to be statistically insignificant, and that average arrivals between 6.00 a.m. and 6.30 a.m. are 17.86 in winter and 19.14 in summer.

The Government submit that the applicants are 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 15.7.80, DR 26, p. 5; Baggs v. the United Kingdom, application no. 9310/81, decision of 16.10.85, DR 44, p. 13; Rayner v. the United Kingdom, application no. 9310/81, decision of 17.7.86, DR 47, p. 5), and that with the exception of one of the applicants, Mr Cavalla, at his former address, all the applicants are 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 3.12.97). The Government submit that, in these circumstances, there has been no interference with the applicants’ rights under Article 8 § 1 of the Convention.

The Government submit, 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.

The applicants submit that after the 1993 scheme was introduced, the level of noise caused by aircraft taking off and landing at Heathrow airport between 4.00 a.m. and 7.00 a.m. increased significantly, and that there was no justification for the Government’s decision to allow the increase in night noise which the 1993 scheme entailed.

Having regard to the parties’ submissions, the Court finds that the complaints under Articles 8 and 13 of the Convention raise serious issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits. This part of the application cannot therefore be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicants’ complaints under Articles 8 and 13;

DECLARES INADMISSIBLE the remainder of the application.

S. DolléJ.-P. Costa
RegistrarPresident

 

Full & Egal Universal Law Academy