KHATUN AND 180 OTHERS v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 38387/97

                      by Anwara KHATUN and 180 Others

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 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 23 October 1997

by Anwara KHATUN and 180 Others against the United Kingdom and

registered on 31 October 1997 under file No. 38387/97;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant is a Bangladeshi citizen, resident in London.

He and the other 180 applicants are represented before the Commission

by Sally Moore of Leigh, Day & Co, Solicitors in London.  A list of the

applicants is annexed to the present decision.

     The facts of the application, as submitted by the applicants'

representative, may be summarised as follows.

     The applicants all live in residential dwellings in the Limehouse

and Poplar areas of London nearby to the Docklands.  The areas of

Limehouse and Poplar are characterised by the predominance of low cost

housing.  The majority of the applicants' homes are owned by the

municipal council or local housing associations.  There is a high

percentage of ethnic minorities, recent immigrants and refugees in the

areas.  Limehouse and Poplar are adjacent to the old West India docks,

part of which is referred to as Canary Wharf.  By the mid 1970's, the

docks, previously a thriving port, had become largely derelict.

     The Local Government, Planning and Land Act 1980 contained

provisions designed to encourage the regeneration of such areas.  It

provided that if the Secretary of State was of the opinion that it was

"expedient in the national interest", he could designate an area as an

"urban development area" and establish an "urban development

corporation" for the purposes of regenerating the area.  The 1980 Act

listed the ways in which regeneration of the area was to be achieved:

     "...bringing land and buildings into effective use, encouraging

     the development of existing and new industry and commerce,

     creating an attractive environment and ensuring that housing and

     social facilities are available to encourage people to live and

     work in the area..."

     In 1981 the Secretary of State designated the London Docklands

an urban development area and established the London Docklands

Development Corporation (the "LDDC").

     In order to encourage development by the private sector, the Act

enabled the Secretary of State to override the normal requirements for

planning permission contained in the Town and Country Planning

Act 1971.  Under those powers, he approved a scheme adopted by the LDDC

for designating the London Docklands area as an enterprise zone.  The

scheme provided that (subject to certain exceptions) all land in the

zone was deemed to be granted planning permission for any kind of

development.

     Before the 1980 Act it is likely that prior to the grant of such

planning permission in Limehouse, a public inquiry under the 1971 Act

would have been held for local residents to put forward any objections.

In an enterprise zone, the procedure for the protection of neighbouring

interests was limited.  Before adopting the scheme, the LDDC was

obliged to consider representations by the residents.  If their

representations were rejected, the residents could lobby members of

Parliament to try to have the scheme annulled by negative resolution.

In all other respects, their interests were liable to be overridden by

the Secretary of State's view of the national interest and the LDDC's

view of the best way to achieve its statutory objectives.

     In July 1986 the LDDC concluded agreements in relation to

building works in Limehouse and Poplar.  As part of these works, the

LDDC employed contractors to construct a new road, called the Limehouse

Link Road giving access to the Docklands area from Central London.  A

great deal of excavation and earth moving was necessary for the road,

nearly a mile of which was to be underground.

     Construction of the road and other projects in the area lasted

from November 1989 to May 1993.  The construction caused a great deal

of dust to rise in the air which settled on the homes and gardens of

the applicants.  If they opened their windows, everything in the room

was soon covered in a layer of dust.  On hot days they had to decide

whether to endure the heat or to open the windows and endure the dust.

The residents found it very hard to keep their property clean.  If they

hung out the washing in the garden it became dirty again, with the

result that the residents had to use launderettes to dry their clothes.

Frequently they were unable to enjoy their gardens for recreational

purposes because of the levels of dust contamination.

     On 16 December 1993 a group of residents from the Limehouse and

Poplar areas commenced an action in the High Court based on negligence

and nuisance against the LDDC and an action based on nuisance against

Canary Wharf Limited, the company responsible for the construction of

the Canary Wharf tower which disrupted television reception in the

Docklands area.  The applicants numbered about 513 individuals (the

number fluctuated during the proceedings) and about 127 households.

Many of the applicants had no proprietary interests in their homes, for

example the wives of husbands who were the sole owners of the

properties, relatives or lodgers.

     On 9 November 1994 the first instance court held that a plaintiff

in an action for private nuisance must have a right to exclusive

possession of the property to which the nuisance is alleged to have

been caused.

     The Court of Appeal reversed this decision and held that:

     "A substantial link between the person enjoying the use and the

     land on which he or she is enjoying it is essential, but, in my

     judgment, occupation of property, as a home, does confer upon the

     occupant a capacity to sue in private nuisance."

     The House of Lords, however, held on 26 April 1997 that a person

who had no right to the land affected by a nuisance could not bring an

action in private nuisance.  The tort of nuisance was directed against

the plaintiff's enjoyment of his rights over land and, ordinarily, only

a person with a right to exclusive possession of the land affected,

such as the freeholder, a tenant in possession or a licensee with

exclusive possession could sue, but, exceptionally, a person who was

in exclusive possession of land but who was unable to prove title to

it could also sue.  However, a mere licensee or occupier had no right

to sue.

     The remaining plaintiffs with a proprietary interest retained

their right to sue for the unnecessary nuisance.  The House of Lords

held:

     "In the case of nuisances productive of sensible personal

     discomfort, the action is not for causing discomfort to the

     person but...for causing injury to the land.  True it is that the

     land has not suffered "sensible" injury but its utility has been

     diminished by the existence of the nuisance.  It is for an

     unlawful threat to the utility of his land that the possessor or

     occupier is entitled to an injunction and it is for the

     diminution in such utility that he is entitled to such

     compensation."

     The damages for such compensation would therefore be calculated

by reference only to the value of the land occupied by the plaintiffs

and would have no reference to the individual's personal discomfort.

Lord Hoffman:

     "It seems to me that the value of the right to occupy a house

     which smells of pigs must be less than the value of the

     occupation of an equivalent house which does not.  In the case

     of a transitory nuisance, the capital value of the property will

     seldom be reduced.  But the owner or occupier is entitled to

     compensation for the diminution in the amenity value of the

     property during the period for which the nuisance persisted.  To

     some extent this involves placing a value on intangibles.  But

     estate agents do this all the time.

     It follows that damages for nuisance recoverable by the possessor

     or occupier may be affected by the size, commodiousness and value

     of his property but cannot be increased merely because more

     people are in occupation and therefore suffer greater collective

     discomfort.  If more than one person has an interest in the

     property, the damages will be divided amongst them."

     According to this finding, the damages would be calculated by

assessing a notional market rental value for each property without the

presence of the environmental nuisance, assessing the reduction in such

rental value caused by the presence of the nuisance and multiplying

this reduction by the duration of the nuisance.  This would provide the

sole measure of compensation for loss of amenity caused by the presence

of the nuisance for each household.  This decision meant that legal aid

would be discharged on cost benefit grounds.  The predicted value of

the collective claim was so low that any pursuit of such claim in the

United Kingdom courts would be futile.

     In addition, dust nuisance of the type suffered by the applicants

is not a statutory nuisance within the meaning of the Environmental

Protection Act 1990 and the applicants would not have been able to

pursue a statutory claim against the LDDC either.

COMPLAINTS

     The applicants complain that as a result of excessive dust caused

by construction work between November 1989 and May 1993, their rights

to respect for their homes and private lives have been violated

contrary to Article 8 of the Convention.

     They also complain under Article 14 of the Convention that they

have been discriminated against on the grounds of poverty in that the

amount of compensation they may receive for dust nuisance depends on

the difference in value between the property as affected by dust and

the property when not affected.  Given the fact that the applicants'

housing is at the lower end of the scale in terms of amenity and cost,

the presence of such a nuisance although causing significant personal

discomfort, has little or no effect on the market value of the

properties.  Accordingly, even if those applicants with a proprietary

interest are successful in establishing that they were victims of

unlawful environmental nuisance, they will nevertheless receive little

or no compensation.

     Further they complain under Article 13 of the Convention, that

the judgment of the House of Lords in Hunter and others v. Canary Wharf

Ltd; Hunter and others v. London Docklands Development Corp. ([1997]

2 All ER 426) leaves them with no effective remedy to seek compensation

for the alleged violation of their rights under Article 8.  Without

legal aid, they were financially unable to pursue their nuisance

claims.

THE LAW

1.   The applicants allege that their rights to respect for their

homes and family and private lives have been violated contrary to

Article 8 (Art. 8) of the Convention.

     Article 8 (Art. 8) of the Convention provides:

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security, public safety or the economic well-being

     of the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

     The Commission notes that in the domestic proceedings, a

distinction was made between those applicants with a proprietary

interest in the land and those without such an interest.  For the

purposes of Article 8 (Art. 8) of the Convention, there is no such

distinction.  "Home" is an autonomous concept which does not depend on

classification under domestic law.  Whether or not a particular

habitation constitutes a "home" which attracts the protection of

Article 8 para. 1 (Art. 8-1) of the Convention will depend on the

factual circumstances, namely, the existence of sufficient and

continuous links (see Eur. Court HR, Gillow v. United Kingdom judgment

of 24 November 1986, Series A no. 109).  Even where occupation of the

property is illegal, this will not necessarily prevent that occupation

from being that person's "home" within the meaning of Article 8

(Art. 8) of the Convention (see Eur. Court HR, Buckley v. United

Kingdom judgment of 25 September 1996, Reports-IV 1996).  The

Commission considers that Article 8 para. 1 (Art. 8-1) applies to all

the applicants in the present case whether they are the owners of the

property or merely occupiers living on the property, for example the

children of the owner of the property.

     The Commission notes that the applicants were unable to use their

gardens or open their windows without being covered in dust emanating

from the construction work, although no mention is made of any health

problems as a result of exposure to dust.  The Court has found that

aircraft noise may constitute an environmental nuisance in that the

quality of the applicants' private lives and the scope for enjoying the

amenities of their homes was adversely affected by the noise generated

by aircraft using Heathrow Airport, albeit to greatly differing degrees

(see Eur. Court HR, Powell and Rayner v. United Kingdom judgment of

21 February 1990, Series A, no. 172).  Nauseating smells, pestilential

fumes and persistent noise which emanated from a waste-treatment plant

in Murcia and caused health problems to the applicant and her daughter,

were also considered likely to impair the applicant's private and

family life (see Eur. Court HR, López Ostra v. Spain judgment of

9 December 1994, Series A no. 303, p. 54).  The Court went on to say

in that case:

     "Naturally, severe environmental pollution may affect

     individuals' well-being and prevent them from enjoying their

     homes in such a way as to affect their private and family life

     adversely, without, however, seriously endangering their health."

     Whether the question is analysed in terms of a positive duty on

the State - to take reasonable and appropriate measures to secure the

applicants' rights under Article 8 para. 1 (Art. 8-1) of the Convention

- or, in terms of an "interference by a public authority" to be

justified in accordance with Article 8 para. 2 (Art. 8-2), the

applicable principles are broadly similar.  In both contexts regard

must be had to the fair balance that has to be struck between the

competing interests of the individual and of the community as a whole,

and in any case the State enjoys a certain margin of appreciation.

Furthermore, even in relation to the positive obligations flowing from

the Article 8 para. 1 (Art. 8-1), in striking the required balance the

aims mentioned in the second paragraph may be of a certain relevance

(see the López Ostra v. Spain judgment, op. cit.).

     The Commission considers that although none of the applicants has

alleged any ill-health as a result of dust contamination (either during

the domestic proceedings or before the Commission), the fact that they

could not open windows or dry their laundry outside for a period of

three years severely impaired their right to enjoy their homes and

private or family lives.

     According to the constant case-law of the Convention organs, an

interference under the first paragraph of Article 8 (Art. 8) entails

a violation unless it is "in accordance with the law", has an aim that

is legitimate under Article 8 para. 2 (Art. 8-2) and is "necessary in

a democratic society" for the aforesaid aim (see Eur. Court HR, W. v.

the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27,

para. 60).  The development of the Docklands and the construction work

was pursuant to a scheme under the Local Government, Planning and Land

Act 1980 approved by the Secretary of State which obviated the need for

any planning permission and which the Commission finds was "in

accordance with the law".  The Commission further notes that the aim

of the 1980 Act was to regenerate derelict urban areas and considers

that the measures employed pursued the legitimate aims of the economic

well-being of the country as provided for in the second paragraph of

Article 8 (Art. 8) of the Convention.

     The Commission further recalls that the case-law of the

Commission and the Court establishes that the notion of "necessity"

implies that the interference corresponds to a pressing social need and

that it is proportionate to the aim or aims pursued.  In assessing the

proportionality, regard must be had to whether a fair balance has been

struck between the demands of the general interest of the community and

the requirements of the protection of an individual's fundamental

rights.  In determining whether an interference is justified the

Commission and Court will take into account that a margin of

appreciation is left to the Contracting States, which are in principle

in a better position to make an initial assessment of the necessity of

a given interference (see Eur. Court HR, Olsson v. Sweden judgment of

24 March 1988, Series A no. 130, p. 32, para. 68).

     The Commission must consider the general interests of the

community against the applicants' rights to respect for their private

and family lives and their homes.  The regeneration of the Docklands

area pursued a legitimate and important aim.  The construction of the

road, providing a link to Central London, was essential to the

development of the area.

     Against this important public interest must be weighed the

applicants' own position.  They suffered a considerable degree of

inconvenience from dust, and it was apparently not open to them to

pursue any remedy in respect of that inconvenience.  In the case of

some of them, the absence of a remedy stemmed from the absence of

property interests in their homes; in the case of others, from the fact

that damages for nuisance for personal discomfort are limited to a loss

of value of the property.  However, the Commission notes that the

inconvenience, whilst undoubtedly unpleasant, has not been claimed to

have given rise to health problems for any of the applicants.  Further,

it was limited in time to the period of the works, some three and a

half years, and it is unlikely that all applicants were equally

severely affected for the whole of that period.  Moreover, the

Commission notes that it appears that no action was attempted whilst

the problems with the dust still subsisted.  No remedy sought after the

end of an alleged nuisance can prevent the nuisance from happening, and

calculation of compensation is necessarily difficult, especially where

no harm to health or depreciation of property is alleged.

     Given the importance of the public interest in the present case,

together with the limits on the extent to which the applicants suffered

from the dust caused, the Commission cannot find that a fair balance

has not been achieved.

     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 applicants further complain under Article 14 (Art. 14) of the

Convention that they have been discriminated against on the grounds of

poverty.

     Article 14 (Art. 14) of the Convention provides:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     The Commission recalls that Article 14 (Art. 14) affords

protection against discrimination, that is treating differently,

without an objective and reasonable justification, persons in

"relevantly" similar situations.  For a claim of violation of this

Article to succeed, it has therefore to be established, inter alia,

that the situation of the alleged victim can be considered similar to

that of persons who have been better treated (see Eur. Court HR, Fredin

v. Sweden judgment of 18 February 1991, Series A no. 192, p. 19, para.

60).  The applicants must show that they are persons in the same

category as another, that they have been treated differently, that such

treatment was not objectively and reasonably justified, and the

treatment was carried out by the Contracting State against which the

complaint is being made.  There are no other persons in "relevantly "

similar situations to the applicants.  There is no evidence that there

are persons in the same category as the applicants who have been

treated more favourably.

     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.

3.   The applicants also complain under Article 13 (Art. 13) of the

Convention that there is no effective remedy available to them under

English law to seek proper compensation.

     Article 13 (Art. 13) of the Convention 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."

     The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31).  In the

present case, the Commission has rejected the substantive claims as

disclosing no appearance of a violation of the Convention.  For similar

reasons, they cannot be regarded as "arguable".

     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.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                              M.P. PELLONPÄÄ

     Secretary                                    President

to the First Chamber                         of the First Chamber

 

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