THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30966/96
by Astrid MOE and Others
against Norway
The European Court of Human Rights (Third Section) sitting on 14 December 1999 as a Chamber composed of
SirNicolas Bratza, President,
MrJ.-P. Costa,
MrP. Kūris,
MrsF. Tulkens
MrW. Fuhrmann,
MrK. Jungwiert
MrsH.S. Greve, judges,
andMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 March 1996 by Astrid MOE and Others against Norway and registered on 4 April 1996 under file no. 30966/96;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The present application was lodged by fourteen Norwegian nationals (born in the years indicated in brackets): Mrs Astrid Moe (1926), Mr Reidar Larsen (1933), Mrs Anne Berit Willoch (1951), Mrs Asbjørg Holt Samuelsen (1940), Mr Martin Bartsch (1952), Mr Ove Holt (1928), Mr Olav Sigurdslid (1943), Mr Steinar Mathisen (1961), Mr Ian A. Haugen (1949), Mr Helge Svendsen (1952), Mrs Ragnild Holt Hansen (1957), Mr Thorbjørn Gullkrona Karlsen (1938), Mrs Astrid Johnsen Thune (1927), Mr Bjørnar Hvarnes (1959). At the relevant time they all lived in Bommestad, near Larvik, Norway. Subsequently, at some time after lodging their application, Mr Bartch, Mrs Willoch and Mrs Hansen moved to live elsewhere.
The applicants are represented before the Court by Mr Knut Rognlien, a lawyer practising in Oslo.
The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows.
In 1970 the County Governor (fylkesmannen) proposed the establishment of a waste‑treatment plant to service jointly the municipalities of the cities of Larvik and Sandefjord, replacing various local waste disposal sites, including a site situated in the vicinity of the applicants' homes. The location was examined by two inter‑municipal committees and the area of Øvre Grinda (Upper Grinda) was selected and later adopted by Hedrum Municipal Council in 1974.
In 1975 Søndre Vestfold Avfallsselskap (SVA) was established by the Larvik and Sandefjord Municipalities. In September 1976, after being granted a licence by the County Governor under the Prevention of Water Pollution Act 1970 (Lov om vern mot vannforurensing - Law of 26 June 1970 no. 75), SVA set up a waste disposal plant in May 1977, which started to operate in October 1977.
From the outset it was intended that the plant would serve only for a limited period and that other sites would be needed.
The applicants' properties were located between 200 and 400 meters away from the plant, at a lower level than the plant and with a hill between the properties and the plant. Several of the applicants had bought their properties after the waste-treatment plant began to operate.
On 16 October 1990 the County Governor granted SVA a provisional licence under sections 11 and 29 of the Prevention of Pollution Act 1981 (Forurensningsloven, Law of 13 March 1981 no. 6). The earlier licence granted on 20 September 1976 continued to apply. In 1992 the activities at Øvre Grinda were terminated.
On 15 May 1990 all the applicants, with the exception of Mr Reidar Larsen, instituted proceedings against the SVA and the municipalities of Larvik and Sandefjord, requesting an order to stop the activities at the waste-treatment plant and compensation or, in the alternative, remuneration under section 10 of the Neighbour Act 1961 (Granneloven, Law of 16 June 1961 no. 15).
On 3 September 1991 the National Institute of Public Health (Statens Institutt for Folkehelse) published a report on its analysis of measurements of air pollution originating from the waste-disposal plant of Øvre Grinda. It concluded, inter alia, that the concentration of hydrogen sulphide gas at the dump was significantly higher than the limit recommended by the World Health Organisation. It could not be excluded that persons who were directly exposed to such gas concentration would experience irritation of the eyes. However, the main problem appeared to be the nuisance caused by the smell from the gas.
By judgment of 7 November 1991, the Larvik City Court (byrett) concluded that the inconvenience suffered by the applicants (other than Mr Larsen) as a result of the smell from the Øvre Grinda waste‑treatment plant exceeded the legal limits of tolerable nuisance (naborettslig tålegrense), in breach of section 2 of the Neighbour Act, and that they suffered economic damage as a result of loss in value of their properties. The City Court ordered the defendants to pay each of the applicants 250,000 Norwegian kroner (NOK) in compensation for pecuniary damage.
On 5 March 1992 also Mr Larsen, together with his wife, brought proceedings before the City Court which, in a judgment of 15 June 1992, reached the same conclusions as in the other applicants’ case.
SVA and the Municipalities of Larvik and Sandefjord appealed against the City Court's judgments to Agder High Court (lagmannsrett). The applicants lodged a cross appeal in respect of inconvenience suffered until the time of judgment.
In a judgment of 22 March 1993 the High Court observed that an important consideration was that the activities of the waste-treatment plant benefited between 70,000 and 90,000 people, including the population in the area of the plant, and thus served public interests. Other alternative sites had been considered before locating the plant at Øvre Grinda, but had been excluded because of the costs and the risk of polluting ground water flowing into Larvik's drinking water source. At Øvre Grinda, such ground water could easily be evacuated into the cloak system. It further observed that SVA had taken every economically feasible measure to reduce or eliminate the inconvenience caused by the smell and the large numbers of seagulls attracted to the site.
Nevertheless, the High Court found, with respect to all the applicant owners - whether they had acquired their properties before or after the plant started to operate - that, because of several unfortunate circumstances related to the fact that the plant had been a pilot project, the smell problem had been greater than normal and significantly worse than could have been foreseen, even by those owners who had settled after the plant was established. However, the smell was significantly reduced in 1989 and no longer represented an unreasonable burden to the owners. The dumping of waste at Øvre Grinda had ceased and, even though one could expect some smell from time to time, for instance in connection with maintenance work on the plant, lately the situation had improved significantly.
The High Court did not find it established that the value of any of the applicants' properties had been reduced as a result of their proximity to the waste-treatment plant. The High Court had carried out an on-site visit but had not found any annoying smell or any abnormal number of seagulls. In its view there was no basis for making an award of compensation.
As regards the applicants’ claim to be compensated for the inconvenience they had suffered, the High Court observed that the pollution level had exceeded the legal limit of tolerable nuisance during the period from 1977 until 1986, when the gas incineration plant started to operate. Since then, nuisance in the form of smell had occurred from time to time until 1989, especially during the summer of 1989. Even though strong smell nuisance had also occurred thereafter, the High Court did not find it established on the evidence that the inconvenience had exceeded the legal limit after 1990. Within the system of remedies under the Neighbour Act, there was no room for making an award of compensation such as that claimed by the applicants which, in reality, was a claim for non-pecuniary damage. Under section 10 of the Neighbour Act it was possible for a land owner suffering from a nuisance originating from neighbouring land to request the alteration of future activities so as to avoid inconvenience in excess of the legal limit of tolerable nuisance. If the excessive inconvenience could not be remedied by means of alteration, or if the costs of such measures were disproportionate to their advantages, the injured land owner could, as an alternative, be entitled to payment (vederlag) for the excess. Again, this applied only to future inconvenience. However, in the present case the detriment in question had been remedied and the future activities at Øvre Grinda would not cause any such inconvenience exceeding the limits of tolerable nuisance.
The applicants sought to appeal to the Supreme Court against the High Court's assessment of the facts and the law. On 19 November 1993 the Appeals Selection Committee of the Supreme Court granted the applicants leave to appeal in as far as the claim for compensation for the inconvenience suffered during the period until and including 1990 was concerned.
By judgment of 8 September 1995, the Supreme Court upheld the High Court's findings of fact as to the nature and extent of the nuisance in question and its conclusions, albeit on a somewhat different interpretation of the law. Unlike the High Court, the Supreme Court was of the view that, under the relevant provisions of the Neighbour Act, the question of payment for inconvenience arose only with respect to owners who had settled before 1977. However, like the High Court, it considered that payment could only be claimed with respect to nuisance which was permitted to continue without alteration, but this applied only to future inconvenience. As regards inconvenience suffered in the past, an award of compensation could only be made for economic loss.
In the latter context the Supreme Court examined the applicants' submission that, in the light of Article 8 of the Convention, as interpreted and applied by the European Court in the Lopez Ostra v. Spain judgment of 9 December 1994 (Series A no. 303-C), the provisions on payment for inconvenience should also apply to non-pecuniary damage suffered in the past. The Supreme Court observed that the Spanish case concerned a private party which had been exposed to considerably more extensive and more serious pollution than in the present case, which had been originating from the activities of a private company. The Lopez Ostra judgment could not provide a basis for making an award of compensation for non-pecuniary damage in all cases where the limit of tolerable nuisance, according to section 2 of the Neighbour Act, had been overstepped. Whether the judgment could have implications for more serious pollution cases than the present one remained to be seen.
According to the applicants, despite their objections, on 21 August 1997 SVA was granted a new licence authorising it to continue waste-treatment, and licences have been granted for the storage of animal fats, food and special waste (May 1996), Soya oil (June 1996), spill oil (January 1998), and also for the removal of nets preventing the entry of seagulls (February 1997) and the biological treatment of polluted masses (October 1998).
The applicants have submitted a report from which it transpires that from 1990 to 1998 there were twenty-five fires at Øvre Grinda requiring the intervention of the local fire brigade. This included seven interventions in 1990, four in 1991, five in 1992, one each year from 1993 to 1995, three in 1996, one in 1997 and two in 1998.
COMPLAINT
The applicants complain, under Article 8 of the Convention, that the activities at Øvre Grinda have violated their right to respect for private life and home. Moreover, they allege a breach of Articles 6 and 13 of the Convention on account of the omission of the Supreme Court to deal with one of their submissions as to the lawfulness of the interference.
THE LAW
1.The applicants maintain that they have been and continue to be victims of a violation of Article 8 of the Convention on account of the inconvenience to their enjoyment of their rights under this Article caused by the neighbouring waste-treatment plant at Øvre Grinda. Article 8 reads:
“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 applicants recall that, according to the findings of the Norwegian courts, SVA had until 1990 transgressed the limits of permissible nuisance, in breach of section 2 of the Neighbour Act. Before 16 October 1990, the date when SVA obtained a licence under the Pollution Act to emit polluting gases, it had interfered with their Article 8 rights in a manner which was not "in accordance with the law". This provision had been violated in one further respect, namely in that, despite the legal limits being overstepped, there was no decision by an independent authority to order alteration of the activities at the plant or, as the applicants describe it, "compensation".
Moreover, the applicants argue that, prior to the Supreme Court's judgment of 8 September 1995, there was no case-law suggesting that it was impossible under the applicable provisions to make an award of compensation for non-pecuniary damage in respect of inconvenience suffered in the past (before judgment). Therefore, the applicable law was not sufficiently clear to satisfy the requirements of precision and accessibility flowing from the notion of lawfulness in Article 8 § 2.
Furthermore, the applicants disputed that the impugned activity satisfied the "necessity" test under Article 8 § 2. In their view there was no fair balance between, on the one hand, the public interest involved in the operation of the waste-treatment plant and, on the other hand, the inconvenience caused to the applicants. According to an analysis of certain readings of gas concentrations made in 1991, possible health problems could not be excluded, and both the High Court and the Supreme Court had found that the pollution level was significantly higher before 1990. Although it was not possible to prove that the pollution emitted by the plant was such as to seriously endanger the applicants' health, it was severe enough to entail an interference with their right to respect for their private lives and homes. Unlike Mrs Ostra in the Spanish case, the applicants in the present case had not been offered alternative accommodation or compensation. The fact that the polluter in the present case was a public enterprise, not a private company as in the Lopez Ostra case, did not make the interference complained of any less serious.
In addition, the applicants complain that, since the Supreme Court's judgment of 8 September 1995, SVA's activities at Øvre Grinda have continued, despite their objections.
The Court notes that, in its judgment of 22 March 1993, the High Court found that the pollution level exceeded the legal limit of tolerable nuisance during the period from 1977 until 1986. Since then, nuisance in the form of smell had occurred from time to time until 1989, especially during the summer of 1989. Even though a strong smell nuisance had occurred thereafter, the High Court did not find it established on the evidence that after 1990 the inconvenience had exceeded the legal limit of tolerable nuisance, and it noted that the dumping of waste at Øvre Grinda had ceased in 1992.
Thus, the High Court, in substance, acknowledged that until 1990 the activities at the waste-disposal plant entailed an interference with the applicants’ enjoyment of their right to respect for private life and home which had not been justified for the purposes of paragraph 2 of Article 8 of the Convention, and that their rights under paragraph 1 had thus been violated. Neither the High Court nor the Supreme Court found any basis for making an award of compensation. The applicants had failed to establish that they had suffered any pecuniary damage and, as regards non-pecuniary damage, an order of payment could only have been made as a substitute for alteration and only with respect to future inconvenience. However, as a result of the proceedings the activities at the waste-treatment plant were altered to reduce the nuisance.
As regards the period after 1990, it is to be noted that, according to the findings of the High Court, the nuisance complained of, which had only occurred from time to time since 1989, had been reduced to such a level as to come within the legal limit of tolerable nuisance. The Supreme Court saw no reason to depart from those findings. The Court is not persuaded by the applicants' argument that the 1991 report to which they referred allows the drawing of different conclusions. On the contrary, no material has been submitted to the Court which
could call into question the findings of fact made by the High Court and the Supreme Court. Nor is there anything to suggest that their assessment was based on standards which were inconsistent with Article 8 of the Convention.
The Court further notes that the applicants brought proceedings in May 1990 and that the situation was remedied relatively soon thereafter. Having regard to the level of nuisance complained of, which was significantly less than that at issue in the Lopez Ostra case, and to the closeness in time of the institution of proceedings and the remedial measures bringing the nuisance within the legal limits of tolerable inconvenience, the Court sees no reason to question that the applicants have obtained adequate redress for the matter alleged to constitute a violation of Article 8 of the Convention (cf. the above-mentioned Lopez Ostra judgment, p 53, § 42).
Against this background, the Court considers that, after 1990, the interference with the applicants’ right to respect for private life and home had been remedied to such an extent that they could no longer claim to be "victims" for the purposes of Article 34 of the Convention of a violation of Article 8. Therefore, in so far as their complaint refers to the periods examined by the Norwegian courts, it must be deemed manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and rejected under Article 35 § 4 (see the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, pp. 30‑32, §§ 66-69; S. v. Germany, application no. 10232/83, decision on admissibility of 16 December 1983, DR 35, p. 213; Stefan Einarsson v. Iceland, application no. 22596/93, decision on admissibility of 5 April 1995).
In so far as the applicants' complaint under Article 8 refers to any inconvenience suffered by them beyond the periods examined by the domestic courts, they have not exhausted domestic remedies as required under Article 35 §1 of the Convention. Therefore this aspect of the complaint must be rejected pursuant to Article 35 § 4.
2.The applicants further complained that, in breach of Articles 6 and 13 of the Convention, the Supreme Court had omitted to consider the significance, for the issue of lawfulness, of their above argument as to the absence of a decision by an independent authority on alteration or "compensation".
Article 6 of the Convention provides for a fair hearing in the determination of civil rights and obligations, and Article 13 requires effective remedies for Convention breaches.
However, it does not appear from the applicants' appeal to the Supreme Court dated 9 July 1993 that they invited it to consider the said argument. In any event, the Court observes that they were able to make submissions concerning the lawfulness of the impugned interference both before the City Court and the High Court. Their appeal to the Supreme Court was admitted only in so far as concerned the issue of compensation. It does not transpire that the latter court's omission to deal with the point referred to by the applicants could be viewed as a failure to comply with the duty to provide reasons, or, should that be the case, as an unjustified limitation on their right of access to a court (see the Fischer v. Austria judgment of 26 April 1995, Series A no. 312, p. 18, § 34; cf. the Ruiz Torija v. Spain
judgment of 9 December 1994, Series A no. 303-A, pp. 12-13, §§ 29-30). Even assuming that the applicants have exhausted domestic remedies, this complaint is therefore to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S. DolléN. Bratza
RegistrarPresident
Full & Egal Universal Law Academy