POWELL AND RAYNER v. THE UNITED KINGDOM



Application No. 9310/81

Richard POWELL

 

and

 

Michael RAYNER

 

against

 

the UNITED KINGDOM

 

REPORT OF THE COMMISSION

 

(adopted on 19 January 1989)

 

TABLE OF CONTENTS

 

 

                                                                  page

 

I.      INTRODUCTION (paras. 1-17) ............................   1-3

 

        A.  The application (paras. 2-4) ......................    1

 

        B.  The proceedings (paras. 5-12) .....................   1-3

 

        C.  The present Report (paras. 13-17) .................    3

 

 

II.     ESTABLISHMENT OF THE FACTS (paras. 18-30) .............   4-6

 

        A.  The particular circumstances of the case

            (paras. 18-21) ....................................    4

 

        B.  The relevant domestic law and practice

            (paras. 22-30) ....................................   4-6

 

 

III.    SUBMISSIONS OF THE PARTIES (paras. 31-43) .............   7-10

 

        A.  The applicants (paras. 31-38) .....................   7-8

 

        B.  The Government (paras. 39-43) .....................   9-10

 

 

IV.     OPINION OF THE COMMISSION (paras. 44-66) ..............   11-17

 

        A.  Points at issue (para. 44) ........................    11

 

        B.  General considerations (paras. 45-47) .............   11-13

 

        C.  The present case (paras. 48-62) ...................   13-17

 

            a) Article 13 of the Convention as regards the

               claim under Article 1 of Protocol No. 1

               (paras. 51-52) .................................    14

 

               Conclusion (para. 52) ..........................    14

 

            b) Article 13 of the Convention as regards the

               claim under Article 6 para. 1 (paras. 53-55) ...   14-15

 

               Conclusion (para. 55) ..........................    15

 

            c) Article 13 of the Convention as regards the

               claim under Article 8 (paras. 56-62) ...........   15-17

 

 

- ii -

 

9310/81

 

 

 

                                                                  page

 

 

               aa)  The first applicant (paras. 56-57) ........    15

 

                    Conclusion (para. 57) .....................    15

 

               bb)  The second applicant (paras. 58-62) .......   15-17

 

                    Conclusion (para. 62) .....................    17

 

        D.  Recapitulation (paras. 63-66) .....................    17

 

 

Dissenting opinion of Mr.  Danelius joined

by MM. Jörundsson and Weitzel and Mrs.  Liddy ..................    18

 

 

 

 

APPENDIX I      History of the proceedings

                before the Commission .........................   19-20

 

APPENDIX II     Decision on the admissibility

                of Mr.  Powell's application ...................   21-37

 

APPENDIX III    Decision on the admissibility

                of Mr.  Rayner's application ...................   38-57

 

I.      INTRODUCTION

 

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

 

 

A.      The application

 

2.      The applicants, Mr.  R. Powell and Mr.  M. Rayner, are United

Kingdom citizens, born in 1928 and 1938 respectively.  The first

applicant is a businessman who lives in Esher, Surrey.  The second

applicant is a farmer who lives and farms in Colnbrook, Slough,

Berkshire.  They are committee members of the Federation of Heathrow

Anti-Noise Groups, whose aim is to contain and improve the noise

environment at Heathrow Airport, which is near the homes of both

applicants.

 

3.      The applicants were represented before the Commission by Miss

F. Hampson, LL.B., who succeeded Mr.  N.C. Walsh, Solicitor, Messrs.

Blaker, Son and Young, Solicitors, Lewes, East Sussex.  The Government

were represented by their Agents, Mrs.  A. Glover, succeeded by Miss

E.S. Wilmshurst and Mr.  M.C. Wood, all of the Foreign and Commonwealth

Office.

 

4.      The application was originally lodged together with two other

parties, the Federation of Heathrow Anti-Noise Groups, and Mr.  F. Baggs.

All the applicants complained originally of the excessive noise levels

generated by landing or departing aircraft at Heathrow Airport and

alleged violations of Articles 6 para. 1, 8 and 13 of the Convention

and Article 1 of Protocol No. 1 to the Convention.  The Commission

rejected the case of the Federation in a partial decision of 15 March

1984.  The part of the case brought by Mr.  Baggs was settled between

the parties, resulting in a Report of the Commission pursuant to

Article 30 of the Convention, adopted on 8 July 1987.  The complaints

of MM. Powell and Rayner concerning Articles 6 para. 1 and 8 of the

Convention and Article 1 of Protocol No. 1 were rejected in the

Commission's decisions on admissibility dated 17 October 1985 and 16

July 1986 respectively.  In those latter decisions the Commission also

declared admissible the applicants' identical complaint under Article

13 of the Convention, namely, that they had no effective remedy at

their disposal for their substantive grievance about the noise

nuisance created by Heathrow Airport and its effects on the

environment of their homes nearby.  This is the subject of the present

Report.

 

 

B.      The proceedings

 

5.      The application was introduced on 31 December 1980 and

registered on 23 March 1981.

 

6.      On 20 September 1982 the Rapporteur, pursuant to Rule 42 para.

2 (a) of the Commission's Rules of Procedure, requested further

information from the applicants concerning factual circumstances.  This

information was submitted on 11 October and 30 November 1982.  On

15 March 1984 the Commission decided, in accordance with Rule 42 para.

 

2 (b) of its Rules of Procedure, to give notice of the application to

the respondent Government and to invite them to present their

observations in writing on the admissibility and merits of the

application.

 

7.      The Government submitted their observations on 21 September

1984.  The applicants replied on 18 February 1985.  On 13 May 1985 the

Commission decided to deal separately with the applicants and to

adjourn its consideration of the circumstances of MM. Powell and

Rayner, pending its examination of Mr.  Baggs' part of the application.

A hearing on admissibility and merits was held in Mr.  Baggs' case

on 16 October 1985.  The Commission declared his case partially

admissible, following which, on 17 October 1985, Mr.  Powell's

application concerning his complaint under Article 13 of the

Convention was declared admissible, the remainder of his complaints

being rejected.  That same day the Commission also decided to request

further information, pursuant to Rule 42 para. 3 (a) of its Rules of

Procedure, from the Government and Mr.  Rayner concerning his case.  The

Government submitted their further observations and comments about Mr.

Rayner's case on 27 November 1985, 29 January 1986 and 2 July 1986,

which were exchanged with the responses of Mr.  Rayner's representative

in letters dated 9 December 1985, 7 January 1986 and 22 and 24 April

1986.  The Commission further considered the admissibility of Mr.

Rayner's case on 16 July 1986 and declared it admissible as regards

his Article 13 complaint, the remainder of his claims being rejected.

 

8.      In the meantime, on 1 April 1986 the parties were sent the

text of the Commission's decision on admissibility in Mr.  Powell's

case and invited, pursuant to Rule 45 of the Commission's Rules of

Procedure, to submit any additional observations they wished to make

on its merits.  The Government submitted their further observations on

29 July 1986, to which the applicants' representative replied on 1

September 1986 and 9 March 1987, the latter in respect of both Mr.

Rayner's and Mr.  Powell's claims.

 

9.      During these proceedings negotiations for a friendly

settlement of Mr.  Baggs' part of the case were successfully conducted,

resulting in the adoption of a Report in accordance with Article 30 of

the Convention on 8 July 1987.

 

10.     The Commission examined the merits of MM. Powell's and Rayner's

part of the application on 10 October 1987 and decided to adjourn the

matter pending the outcome of the case of Boyle and Rice v. the United

Kingdom, which had been referred to the European Court of Human Rights

on 18 July 1986, and concerned complex issues under Article 13 of the

Convention, albeit in relation to prison conditions.  The Court gave

its judgment in that case on 27 April 1988.  On 18 May 1988 the

applicants were invited to submit any comments they had on the

relevance of this judgment to their case.  These comments were

submitted on 17 August and 28 October 1988.  The Government responded

to the first of these submissions on 4 October 1988.

 

11.     On 18 January 1989 the Commission again examined the merits of

the remaining case and took their final votes.  On 19 January 1989 the

Commission adopted the text of the Report.

 

12.     After declaring the case of MM. Powell and Rayner admissible,

the Commission, acting in accordance with Article 28 para. b of the

Convention, placed itself at the disposal of the parties with a view

to securing a friendly settlement of the case.  In the light of the

parties' reaction, the Commission now finds that there is no basis

upon which a settlement can be reached.

 

 

C.      The present Report

 

13.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

 

                MM.  J.A. FROWEIN, Acting President

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

 

14.     The text of this Report was adopted by the Commission on

20 January 1989 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

 

15.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

 

        1)  to establish the facts, and

 

        2)  to state an opinion as to whether the facts found

            disclose a breach by the State concerned of its

            obligations under the Convention.

 

16.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decisions on the admissibility of the application as Appendices II and

III.

 

17.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.     ESTABLISHMENT OF THE FACTS

 

 

A.      The particular circumstances of the case

 

18.     The first applicant bought his house in Esher, Surrey, in

1957.  The house is several miles from Heathrow Airport, but as of

1972 the area in which the house is situated became one of the flight

departure routes from Heathrow in operation about one third of the

year, particularly in the summer.  In respect of aircraft noise

nuisance zones, the applicant's property is just within the 35 NNI

contour, considered to be a low noise nuisance rating.  Half a million

other people live within this contour area.

 

19.     NNI signifies the Noise and Number Index based on such factors

as the number of aircraft flights heard above a certain noise level

(80 PNdB, perceived noise decibels), flying in daytime during the busy

summer months.  The NNI is part of the criteria applied in planning

controls, so that land within the 35-39 NNI contours may be used for

residential development, planning permission not being refused on

noise grounds alone.  However land within the 40-50 NNI contours

(moderate noise annoyance zone) will not be given over to development

except for the infilling of existing built up areas, on condition that

the appropriate sound insulation is used.  No development whatsoever

is permitted for land falling within the 60 NNI and over contours

(rated high noise nuisance zones).  It is to be noted that the NNI

calculation reflects a logarithmic element in the PNdB scale, with the

result that every increase of 10 in that scale represents

approximately a doubling of the loudness.

 

20.     In 1961 the second applicant took up residence of his home and

farm in Colnbrook, Slough, Berkshire.  It is about one and a third

miles west of and in a direct line with Heathrow Airport's northern

runway.  This property is within the 60 NNI contour, i.e. an area of

high noise annoyance for residents, and is regularly overflown during

daytime and to a more limited extent at night.  About 1500 people

around Heathrow Airport experience a noise exposure equal to or more

than that of the second applicant.

 

21.     Heathrow Airport has undergone major development and expansion

since the 1950's and the inauguration of jet aircraft.  It now has

four terminals and is the leading United Kingdom airport, making an

important contribution to the country's economy.  Various measures

have been taken to meet the big increase in air traffic and its

resultant noise nuisance.  These measures include improvement of the

aircraft themselves, restrictions on night jet movements, continual

noise monitoring, the designation of minimum noise routes and the

creation of noise insulation grants.

 

 

B.      The relevant domestic law and practice

 

22.     It is agreed between the parties that the remedies available

under English law to the applicants for their complaints about airport

noise nuisance are limited.

 

23.     Compensation for loss of value of houses and land from airport

noise is envisaged by the Land Compensation Act 1973 to meet problems

created by the environmental impact of new or altered public works.

However such compensation is tied to new or altered public works first

brought into use after 16 October 1969.  Intensification of an

 

existing use (i.e. from works which had been first brought into use

before this date) is not compensateable.  Consequently there is, for

example, no right under English law to limit the flow of traffic on

established roads or the use of other similar public facilities.  Those

who live alongside existing facilities must expect the facility to be

used one day to its full extent.  Thus the applicants would have no

claim for compensation under the Land Compensation Act 1973, there

being no relevant new or altered development in the case of Heathrow

Airport.

 

24.     After the completion of the fourth Terminal at Heathrow,

Heathrow Airport Ltd (a subsidiary of the successor company, BAA plc,

to the British Airport Authority) drew up a Scheme for the purchase of

noise blighted properties close to Heathrow Airport.  By this Scheme

the company was able to buy property severely affected by aircraft

noise at Heathrow (within the 65 NNI contour) where the owner had

acquired the property before 17 October 1969 and where he wished to

move but could not do so except at a deflated price.  Claims had to be

made between 1 January 1987 and 31 December 1988.  By virtue of the

contour limitation the applicants' property is excluded from the

Scheme.

 

25.     The Noise Abatement Act 1960 specifically exempts aircraft

noise from its protection.  The liability of aircraft operators in

respect of actions for trespass and nuisance is further limited by

section 76 of the Civil Aviation Act 1982.  Section 76(1) of the 1982

Act provides as follows:

 

        "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 or of any Orders under section 62 above

        have been duly complied with and there has been no breach

        of section 81 below."

 

26.     Section 76(2) of the 1982 Act goes on to provide for strict

liability (i.e. liability without proof of negligence or intention)

where material loss or damage to any person or property on land or

water is caused by, inter alia, an aircraft in flight or an object

falling from an aircraft.

 

27.     The provisions of section 76 are directly comparable to those

in the Rome Convention on Damage Caused by Foreign Aircraft to Third

Parties on the Surface 1952 ("the Rome Convention").  Article 1 of the

Rome Convention (the parties to which include Belgium, Luxembourg,

Italy and Spain as well as many other countries outside Europe)

provides as follows:

 

        "Any person who suffers damage on the surface shall,

        upon proof only that damage was caused by an aircraft

        in flight or by any person or thing falling therefrom,

        be entitled to compensation as provided by this

        Convention.  Nevertheless there shall be no right to

        compensation if the damage is not a direct consequence

        of the incident giving rise thereto, or if the damage

 

        results from the mere fact of passage of the aircraft

        through the airspace in conformity with existing air

        traffic regulations."

 

28.     However section 76(1) does not exclude all liability on the

part of aircraft operators for trespass and nuisance caused by

aircraft in flight.  In the first place, the exemption only applies in

respect of aircraft flying at a reasonable height above the ground.

What is reasonable is a question of fact depending on all the relevant

circumstances which would include not merely the factors of weather

specifically referred to in the section, but such matters as the size,

speed and noise of the aircraft in question.  Secondly, before the

exemption applies, there must be compliance with the statutory

provisions referred to in section 76(1) itself.  In practice, this

means the provisions of the Air Navigation Order 1980, the Air

Navigation (General) Regulations 1981, the Rules of the Air and Air

Traffic Control Regulations 1981 and, especially important in the

present context, the Air Navigation (Noise Certification) Order 1979.

Thus, if, for example, an aircraft flies overloaded or otherwise than

in accordance with a relevant Noise Certificate, its operator will not

be entitled to rely upon the section as a defence to any action for

trespass or nuisance.

 

29.     In other words, if the applicants were able to show that a

particular airline operator had flown at an height that was

unreasonable in all the circumstances, or had flown in breach of the

provisions of any air navigation order, they might have a remedy

against that operator in civil court proceedings based on nuisance

and/or trespass.  The remedy might take the form of an action for

damages or, in the event of repeated infringements, an injunction to

restrain the operator from continuing to fly in such a manner.  The

applicants have no remedy for noise nuisance emanating from flights

observing a reasonable height and other aviation regulations.

 

30.     Finally, in the event that the applicants were able to show

that the Secretary of State had failed to enforce the statutory

requirements imposed by him under the Civil Aviation Act to reduce and

control aircraft noise a possible action might lie in mandamus to

compel the Secretary of State to ensure compliance with those

requirements.

 

III.    SUBMISSIONS OF THE PARTIES

 

 

A.      The applicants

 

31.     The applicants complain in relation to Article 13 of the

Convention that they consider themselves to be victims of excessive

noise levels emanating from Heathrow Airport which seriously interfere

with their private and family lives, ensured by Article 8 of the

Convention.  However there is no domestic forum capable of providing a

remedy to the alleged violation of their Article 8 rights.  Nor is

there any domestic authority satisfying Article 13 of the Convention

which can deal with the applicants' claim under Article 6 para. 1 of

the Convention that they are denied access to court in respect of

their civil rights.

 

32.     The applicants refer to the judgment of the European Court of

Human Rights in the case of Boyle and Rice confirming its earlier

case-law that "the existence of an actual breach of another provision

of the Convention (a "substantive provision") is not a prerequisite

for the application" of Article 13 of the Convention.  However an

applicant must show that he has an arguable claim of a violation of

such a substantive provision before he can challenge the absence of

remedies under Article 13.  The Court has declined to lay down any

criteria as to what may be an arguable claim.  Such a claim is not

simply a matter falling within the scope of a substantive Article, nor

must it necessarily be a prima facie, admissible issue, for, as the

Court made it clear, arguable "does not mean ... that the Court must

hold a claim to be excluded from the operation of Article 13 if the

Commission has previously declared it manifestly ill-founded under the

substantive Article".  Nevertheless, the Commission's Decision on

Admissibility provides "significant pointers as to the arguable

character of the claims for the purposes of Article 13".  Thus whether

a claim is arguable depends on the "particular facts and the nature of

the legal issue or issues raised" (Eur.  Court H.R., Boyle and Rice

judgment of 27 April 1988, paras. 52-55).

 

33.     Following this approach of the Court the applicants submit

that they have arguable claims under Articles 8 and 6 para. 1 of the

Convention, for which no remedy was available, contrary to Article 13

of the Convention.

 

34.     As regards their claim under Article 8 of the Convention, the

applicants point out that the Commission examined in some depth the

justification for the alleged interference with the applicants'

private lives and homes caused by airport noise nuisance.  In the

Rayner case, in particular, the Commission found a clear interference

with the applicant's Article 8 rights which necessitated a careful

examination of these issues under Article 8 para. 2 of the Convention.

The applicants submit that they have an arguable claim that the

interference with their private lives and homes was not justified:

The applicants were established in their homes before 1961, after

which the noise nuisance from Heathrow Airport dramatically increased

with the construction of Terminals 3 and 4.  Noise insulation grants

are an ineffective way of mitigating noise nuisance, particularly for

people like Mr.  Rayner living within the 60 NNI contour, who are still

 

disturbed by aircraft noise despite such insulation.  Furthermore the

Government's setting of PNdB levels and flight quotas is also

ineffective because the Government do not enforce them and they are

regularly exceeded.

 

35.     As regards the applicants' claim under Article 6 para. 1 of

the Convention, the applicants submit that the Commission's Decisions

on Admissibility are misconceived.  They aver that compensation for

damage caused by noise nuisance is a matter of civil rights and

obligations falling within the scope of this provision of the

Convention, but access to this civil suit is barred in respect of

aircraft noise nuisance by section 76 of the Civil Aviation Act 1982.

The applicants contend that, arguably, this limitation on noise

nuisance claims reduces their "right to a court", having regard to the

rule of law in a democratic society, to such an extent as to impair

the very essence of their normal civil rights against noise nuisance

(cf.  Eur.  Court H.R., Ashingdane judgment of 28 May 1985, Series A no.

93, p. 24, para. 57).  But for the statute bar of section 76 of the

1982 Act Mr.  Powell would have an arguable case in nuisance and/or

trespass against the Heathrow Airport authorities that the noise

levels caused by aircraft are unreasonable, depending on the

definition given by domestic courts to the notion of reasonable.  Mr.

Rayner would have near certain success in such a suit because he can

show that the Government do not enforce their own PNdB and quota

limitations for night take-offs and landings.  The applicants submit,

therefore, that they have established an arguable case of a denial of

their right of access to court by virtue of the statute bar which does

not pursue a legitimate aim, or represent a proportionate pursuit of

whatever aim the Government might put forward.

 

36.     Having established that they have arguable claims that their

rights under Articles 8 and 6 have been violated, the applicants

contend that Article 13 is, therefore, applicable to their

complaints.  As the Commission acknowledged in the Decision on

Admissibility of Mr.  Rayner's case, no specific remedy exists under

British law for these complaints.  The Government have all but

conceded this fact.  Accordingly the applicants conclude that there is

a violation of Article 13 of the Convention in their case.

 

37.     In sum, it is submitted on behalf of the applicants that Mr.

Rayner clearly has an arguable claim that he is the victim of

violations of Articles 8 and 6 of the Convention.  There is no

national authority before which he can bring such a claim, this in

itself representing a violation of Article 13.  The same arguments

apply to the case of Mr.  Powell, but the degree of interference in his

right to respect for his private life is less than that suffered by

Mr.  Rayner, and the chance of his being able to sue successfully in

nuisance and/or trespass, in the absence of the statute bar, is also

less.  He therefore has an arguable claim under both Articles 8 and 6

but it is "less arguable" than that of Mr.  Rayner.

 

38.     Consequently the applicants would ask the Commission to find

that either or both has an arguable claim that their rights under

Articles 8 and 6 of the Convention have been violated.  They repeat

that the lack of any national authority before which they can bring

such an arguable claim itself represents a violation of Article 13.

 

B.      The Government

 

39.     The Government submit, first, that Article 13 is not

applicable to the applicants' claim of a breach of Article 6 para. 1

of the Convention.  Secondly, the applicants have no arguable claim to

be victims of a violation of the rights set out in Article 8 of the

Convention and Article 1 of Protocol No. 1 to the Convention and,

thirdly, in any event, the aggregate of remedies provided for under

domestic law satisfies the requirements of Article 13 in the present

case.

 

40.     As regards the first submission, the Government state that

since the Commission rejected the applicants' Article 6 claim of a

denial of access to court, no separate issue arises under Article 13

of the Convention whose requirements are less strict and are absorbed

by the former (Eur.  Court H.R., Silver and Others judgment of 25 March

1983, Series A no. 61, p. 41, para. 110).  Alternatively, the

applicants have no arguable claim under Article 6 para. 1 of the

Convention or are unable to claim an Article 13 remedy against

legislation (i.e. section 76 of the Civil Aviation Act 1982) which is

allegedly not in conformity with the Convention (loc. cit. para. 113

and Eur.  Court H.R., James and Others judgment of 21 February 1986,

Series A no. 98, p. 47, para. 85).

 

41.     As regards the second submission, the Government contend that

the applicants have no arguable claim under Article 8 of the

Convention since any interference with their rights under the

provision was in the circumstances of their case fully justified under

paragraph 2 of the Article for the following reasons:  The

construction of Heathrow Airport was lawful; it serves the economic

interests of the country and is necessary in a democratic society.  Any

interference with the applicants' rights was proportionate to the

legitimate aim connected with running an airport and in Mr.  Powell's

case, in particular, such interference was minimal as he lives in a

low noise nuisance area.  As regards the claim under Article 1 of

Protocol No. 1, the applicants have no arguable claim that the noise

nuisance affected their property rights, for example, by diminishing

the value of their homes.

 

42.     It is significant that the Commission declared the applicants'

complaints under Articles 6 and 8 and Article 1 of Protocol No. 1

inadmissible as being manifestly ill-founded, particularly in Mr.

Powell's case, where, as regards Article 8 of the Convention, for

example, the first applicant was unable to establish a clear

interference with his rights.  The Government rely on the Court's

judgment in the case of Boyle and Rice, in which it was stated that

"on the ordinary meaning of words, it is difficult to conceive how a

claim that is 'manifestly ill-founded' can nevertheless be 'arguable',

and vice versa".  Nevertheless, if the Commission's decision is not

decisive on this point, it provides "significant pointers as to the

arguable character of the claims for the purposes of Article 13" (Eur.

Court H.R., Boyle and Rice judgment of 27 April 1988, para. 54).  In

these circumstances the Government consider that the applicants'

claims cannot be described as arguable and that, therefore, no

violation of Article 13 of the Convention has occurred in their case.

 

43.     Finally, as regards the third submission, the Government

submit that, in any event, an aggregate of remedies exists which

satisfies Article 13 of the Convention in respect of the applicants'

claims: an action will lie in nuisance for aircraft flying in breach

of altitude and other aviation regulations when the defence provided

by section 76 of the Civil Aviation Act 1982 will not apply; a right

to compensation in certain circumstances exists under the Land

Compensation Act 1973 for loss of value of houses and land from

airport noise; there also exists a statutory scheme for the provision

of grants for the sound insulation of dwellings and there are

statutory requirements imposed and enforced by the Secretary of State

to reduce and control, and to mitigate the effect of, noise from

aircraft using Heathrow Airport.

 

IV.     OPINION OF THE COMMISSION

 

 

A.      Points at issue

 

44.     The following are the points at issue in the present

application:

 

      - whether the applicants had an effective remedy, pursuant to

        Article 13 (Art. 13) of the Convention, in respect of their complaint

        that there has been an unjustified interference with their

        property rights ensured by Article 1 of Protocol No. 1 (P1-1) to

        the Convention;

 

      - whether the applicants had an effective remedy, pursuant to

        Article 13 (Art. 13) of the Convention, in respect of their complaint

        of a denial of access to court in the determination of their

        civil rights, which access is inherently guaranteed by Article

        6 para. 1 (Art. 6-1) of the Convention;

 

      - whether the applicants had an effective remedy, pursuant to

        Article 13 (Art. 13) of the Convention, in respect of their

complaint of an unjustified interference with the right to

respect for private life and home, ensured by Article 8 (Art. 8) of

the Convention.

 

 

B.      General considerations

 

45.     Article 13 (Art. 13) of the Convention provides as follows:

 

        "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."

 

46.     This provision has been interpreted in the following way by

the European Court of Human Rights in the case of Silver and Others:

 

        "(a) where an individual has an arguable claim to be

        the victim of a violation of the rights set forth in the

        Convention, he should have a remedy before a national

        authority in order both to have his claim decided and,

        if appropriate, to obtain redress (see the ...  Klass and

        others judgment, Series A no. 28, p. 29, para. 64);

 

        (b)  the authority referred to in Article 13 (Art. 13) may not

        necessarily be a judicial authority but, if it is not,

        its powers and the guarantees which it affords are

        relevant in determining whether the remedy before it is

        effective (ibid., p. 30, para. 67);

 

        (c)  although no single remedy may itself entirely satisfy

        the requirements of Article 13 (Art. 13), the aggregate of remedies

        provided for under domestic law may do so (see, mutatis

        mutandis, ...  X v. the United Kingdom judgment, Series A

        no. 46, p. 26, para. 60 and the Van Droogenbroeck judgment

        of 24 June 1982, Series A no. 50, p. 32, para. 56);

 

        (d)  neither Article 13 (Art. 13) nor the Convention in general lays

        down for the Contracting States any given manner for ensuring

        within their internal law the effective implementation of any

        of the provisions of the Convention - for example, by

        incorporating the Convention into domestic law (see the

        Swedish Engine Drivers' Union judgment of 6 February 1976,

        Series A no. 20, p. 18, para. 50).

 

        It follows from the last-mentioned principle that the

        application of Article 13 (Art. 13) in a given case will depend

        upon the manner in which the Contracting State concerned

        has chosen to discharge its obligation under Article 1

        (Art. 1) directly to secure to anyone within its jurisdiction the

        rights and freedoms set out in section I (see ...  Ireland

        v. the United Kingdom judgment, Series A no. 25, p. 91,

        para. 239)."

        (Eur.  Court H.R., Silver and Others judgment of 25 March

        1983, Series A no. 61, p. 42, para. 113)

 

47.     In the present case the Commission has declared inadmissible

as being manifestly ill-founded the applicants' claims under Articles 6 and 8

(Art. 6, 8) of the Convention and Article 1 of Protocol No. 1 (P1-1), but

declared admissible their complaint of an absence of any effective domestic

remedy for these claims pursuant to Article 13 (Art. 13) of the Convention.

The European Court of Human Rights in the case of Boyle and Rice considered the

relationship between a complaint which is manifestly ill-founded, within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and the notion of

an arguable claim for the purposes of Article 13 (Art. 13) of the Convention as

follows:

 

        "Notwithstanding the terms of Article 13 (Art. 13) read literally, the

        existence of an actual breach of another provision of the

        Convention (a 'substantive' provision) is not a prerequisite

        for the application of the Article (see the Klass and Others

        judgment of 6 September 1978, Series A no. 28, p. 29, para.

        64).  Article 13 (Art. 13) guarantees the availability of a remedy at

        national level to enforce - and hence to allege non-compliance

        with - the substance of the Convention rights and freedoms

        in whatever form they may happen to be secured in the domestic

        legal order (see the Lithgow and Others judgment of 8 July

        1986, Series A no. 102, p. 74, para. 205, and the authorities

        cited there).

 

        However, Article 13 (Art. 13) cannot reasonably be interpreted so as to

        require a remedy in domestic law in respect of any supposed

grievance under the Convention that an individual may have, no matter

 how unmeritorious his complaint may be:  the grievance must be an

arguable one in terms of the Convention (see, as the most recent

authority, the Leander judgment of 26 March 1987, Series A no. 116, p.

29, para. 77 (a)) ...

 

        As the Court pointed out in its Airey judgment of 9 October

        1979, rejection of a complaint as 'manifestly ill-founded'

        amounts to a decision that 'there is not even a prima facie

        case against the respondent State' (Series A no. 32, p. 10,

        para. 18).  On the ordinary meaning of the words, it is

        difficult to conceive how a claim that is 'manifestly

        ill-founded' can nevertheless be 'arguable', and vice versa.

 

        This does not mean, however, that the Court must hold a

        claim to be excluded from the operation of Article 13 (Art. 13) if

        the Commission has previously declared it manifestly

        ill-founded under the substantive Article.  The Commission's

        decision declaring an application admissible determines the

        scope of the case brought before the Court (see the Ireland

        v. the United Kingdom judgment of 18 January 1978, Series A

        no. 25, p. 63, para. 157).  The Court is precluded from

        reviewing on their merits under the relevant Article the

        complaints rejected as manifestly ill-founded, but empowered

        to entertain those complaints which the Commission has

        declared admissible and which have been duly referred to

        it.  The Court is thus competent to take cognisance of all

        questions of fact and of law arising in the context of the

        complaints before it under Article 13 (Art. 13) (ibid.), including the

        arguability or not of the claims of violation of the

        substantive provisions.  In this connection, the Commission's

        decision on the admissibility of the underlying claims and

        the reasoning therein, whilst not being decisive, provide

        significant pointers as to the arguable character of the

        claims for the purposes of Article 13 (Art. 13).

 

        The Court does not think that it should give an abstract

        definition of the notion of arguability.  Rather it must

        be determined, in the light of the particular facts and

        the nature of the legal issue or issues raised, whether

        each individual claim of violation forming the basis of

        a complaint under Article 13 (Art. 13) was arguable and, if so,

        whether the requirements of Article 13 (Art. 13) were met in

        relation thereto."

        (Eur.  Court H.R., Boyle and Rice judgment of 27 April 1988

        paras. 52-55).

 

 

C.      The present case

 

48.     The applicants submit that they have arguable claims of

breaches of Articles 6 and 8 (Art. 6, 8) of the Convention and, originally,

Article 1 of Protocol No. 1 (P1-1) to the Convention.  From this flows their

contention that they have no effective domestic remedies, pursuant to

Article 13 (Art. 13) of the Convention, for the determination of these claims.

 

49.     The Government reply, inter alia, that in view of the

Commission's Decisions on Admissibility rejecting the applicants'

substantive complaints as manifestly ill-founded, within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention, the applicants do not have arguable

claims under Articles 6 and 8 (Art. 6, 8) of the Convention and Article 1 of

Protocol No. 1 (P1-1).  Hence no violation of Article 13 (Art. 13) of the

Convention is disclosed.

 

50.     The Commission considers that the question whether a claim is

"arguable" must be determined in the light of the particular facts and the

nature of the legal issues raised (see last paragraph of citation at para. 47

above).

 

     a) Article 13 (Art. 13) of the Convention as regards the claim

under Article 1 of Protocol No. 1 (P1-1)

 

51.     The Commission first notes that since it declared the applicants'

Article 13 (Art. 13) complaint admissible the applicants no longer maintain in

their submissions on the merits that they have an arguable claim under Article

1 of Protocol No. 1 (P1-1) to the Convention which would require an effective

domestic remedy.  It also notes that in the present case there was no evidence

that the value of the applicants' property has been substantially diminished or

that their property has been rendered unsaleable by aircraft noise.  In the

absence of any interference with the applicants' property rights the Commission

declared inadmissible as being manifestly ill-founded the applicants'

complaints under Article 1 of Protocol No. 1 (P1-1).  In these circumstances,

the Commission is of the opinion that the applicants do not have an arguable

claim under this provision.  Consequently they are not entitled to an effective

domestic remedy under Article 13 (Art. 13) of the Convention in respect of

their original allegations under Article 1 of Protocol No. 1 (P1-1).

 

        Conclusion

 

52.     The Commission concludes, by a unanimous vote, that there has been no

violation of Article 13 (Art. 13) of the Convention in relation to the

applicants' claim under Article 1 of Protocol No. 1 (P1-1) to the Convention.

 

     b) Article 13 (Art. 13) of the Convention as regards the claim

under Article 6 para. 1 (Art. 6-1)

 

53.     The Commission refers to its Decisions on Admissibility in the

applicants' case in which it found that the applicants had no civil

right to compensation under English law for unreasonable noise

nuisance caused by aircraft, other than that caused by aircraft flying

in breach of aviation regulations.  It also found that the applicants

had not been denied the right of access to a court in the

determination of their civil rights, a right implicitly guaranteed by

Article 6 para. 1 (Art. 6-1) of the Convention.  Accordingly it declared the

applicants' complaint of a breach of this provision manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

54.     Insofar as the applicants are still contending in their

submissions on the merits that they have been denied access to court

in the determination of their civil rights concerning noise nuisance,

contrary to Article 6 para. 1 (Art. 6-1) of the Convention, and that this also

raises an issue of an effective remedy under Article 13 (Art. 13), the

Commission agrees with the Government's view (see para. 40 above) that

no separate issue arises under the latter provision, whose

requirements are less strict and absorbed by the former, the lex

specialis in the matter (cf.  Eur.  Court H.R., Silver and Others

judgment of 25 March 1983, Series A no. 61, para. 110).  Insofar as

the applicants' submissions may be read as a claim to a general right

to a court in all circumstances, a denial of which would allegedly

require an effective domestic remedy, this claim has no arguable basis

under any substantive provision of the Convention.  Accordingly Article 13

(Art. 13) is not applicable to a claim of the latter kind.  Finally, insofar as

the applicants apparently complain of the compatibility with the Convention of

section 76 of the Civil Aviation Act 1982, the

 

Commission recalls its constant case-law, confirmed by the Court, that Article

13 (Art. 13) of the Convention does not go so far as to guarantee a remedy

allowing a Contracting State's legislation to be challenged as such (cf.  Eur.

Court H.R., James and Others judgment of 21 February 1986, Series A No. 98, p.

47, para. 85).

 

        Conclusion

 

55.     The Commission concludes, by a unanimous vote, that there has been no

violation of Article 13 (Art. 13) of the Convention in relation to the

applicants' claim under Article 6 para. 1 (Art. 6-1) of the Convention.

 

     c) Article 13 (Art. 13) of the Convention as regards the claim

under Article 8 (Art. 8)

 

    aa) The first applicant

 

56.     The Commission finds that the first applicant, Mr.  Powell, has

no arguable claim of a breach of Article 8 (Art. 8) of the Convention.  It

notes that his home, along with the homes of half a million other

people, is in an area of low aircraft noise nuisance.  His house in

Esher is situated several miles from Heathrow Airport, just within the

35 NNI contour.  For this reason it was not clearly established that

there had been an interference with his right to respect for private

life or home within the meaning of Article 8 para. 1 (Art. 8-1) of the

Convention.  However the Commission recalls that, in its Decision on

Admissibility in his case, it left the question of interference open,

finding ample justification for any possible limitation on this right

in the second paragraph of Article 8 (Art. 8) for the economic well-being of

the country.  Hence the Commission declared this aspect of Mr.

Powell's case manifestly ill-founded.  In these circumstances the

Commission is of the opinion that the first applicant does not have an arguable

claim under Article 8 (Art. 8) of the Convention.  Consequently he is not

entitled to an effective domestic remedy under Article 13 (Art. 13) for his

allegations under the former provision.

 

        Conclusion

 

57.     The Commission concludes, by a vote of 15 to 1, that there has been no

violation of Article 13 (Art. 13) of the Convention in relation to the first

applicant's claim under Article 8 (Art. 8) of the Convention.

 

    bb) The second applicant

 

58.     The Commission finds that the second applicant, Mr.  Rayner, does have

an arguable claim of a breach of Article 8 (Art. 8) of the Convention.  It

notes that his home and farm, which obliges him to be outdoors much of his

time, is one and one third miles from, and in the direct line of one of

Heathrow Airport's busy runways.  This area is considered to be a high noise

nuisance zone, being within the 60 NNI contour area.  60 NNI signifies a very

much greater noise level than that experienced by residents in the first

applicant's 35 NNI contour area, given the logarithmic element of the Noise and

Number Index (see para. 19 above).  This nuisance is recognised by the State

which, for example, prohibits any further development in this area and the

Government concede that only about 1500 people around Heathrow Airport

experience a noise exposure equal to or more than that of the second applicant.

Mr.  Rayner acquired his home before Heathrow Airport was greatly expanded

with the resultant major increase in aircraft

 

traffic.  Whilst he has no desire to move away from the area he has good

reason, in the Commission's opinion, to complain of and seek redress for the

deterioration of the noise climate in his home environment.

 

59.     The Commission declared Mr.  Rayner's Article 8 (Art. 8) complaint

manifestly ill-founded, because, on balance, the clear interference with his

private life and home was considered necessary in a democratic society for the

economic well-being of the country.  It is implicit in the Commission's

constant case-law that the term "manifestly ill-founded" under Article 27 para.

2 (Art. 27-2) of the Convention extends further than the literal meaning of the

word "manifestly" would suggest at first reading.  In certain cases, where the

Commission considers at an early stage in the proceedings that a prima facie

issue arises, it seeks the observations of the parties on admissibility and

merits.  The Commission may then proceed to a full examination of the facts and

issues of a case, but nevertheless finally reject the applicant's substantive

claims as manifestly ill-founded notwithstanding their "arguable" character.

In such cases the rejection of a claim under this head of inadmissibility

amounts to the following finding: after full information has been provided by

both parties, without the need of further formal investigation, it has now

become manifest that the claim of a breach of the Convention is unfounded.  Mr.

Rayner's substantive claim under Article 8 (Art. 8) of the Convention was such

a case.  The careful consideration which had to be given to this claim and the

facts which gave rise to it lead the Commission to the conclusion that it is an

"arguable claim" for the purposes of Article 13 (Art. 13) of the Convention.

 

60.     The next question to be determined is whether the second applicant has

an effective remedy under Article 13 (Art. 13) of the Convention to redress his

Article 8 (Art. 8) claim.  The applicant submits that he has not, whereas the

Government contend that there is an aggregate of satisfactory remedies

available for aircraft noise nuisance: a civil action in nuisance against

aircraft operators who fail to abide by flight regulations, a claim for

compensation under the Land Compensation Act 1973, sound insulation grants and

State imposition and enforcement of aircraft noise controls.

 

61.     The Commission notes that no civil suit lies in nuisance for the noise

annoyance caused by aircraft flying in accordance with aviation regulations

even though that annoyance may be generally recognised as high.  Moreover for

those like Mr.  Rayner who acquired property before a public utility, such as

Heathrow Airport, was expanded and used to maximum capacity, no right to

compensation under the Land Compensation Act 1973 is available.  Sound

insulation is not wholly effective for people living within the high noise, 60

NNI contour, like Mr.  Rayner, and it seems that despite the noise controls

imposed by the Government a high level of aircraft noise is still to be

expected.  In the particular circumstances of this case, the Commission is of

the opinion that none of these remedies could provide adequate redress for the

claim of Mr.  Rayner under Article 8 (Art. 8) of the Convention.  It finds,

therefore, that the second applicant did not have an effective remedy within

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

 

        Conclusion

 

62.     The Commission concludes, by a vote of 12 to 4, that there has been a

violation of Article 13 (Art. 13) of the Convention in relation to the second

applicant's claim under Article 8 (Art. 8) of the Convention.

 

 

D.      Recapitulation

 

63.     The Commission concludes, by a unanimous vote, that there has been no

violation of Article 13 (Art. 13) of the Convention in relation to the

applicants' claim under Article 1 of Protocol No. 1 (P1-1) to the Convention

(para. 52 above).

 

64.     The Commission concludes, by a unanimous vote, that there has been no

violation of Article 13 (Art. 13) of the Convention in relation to the

applicants' claim under Article 6 para. 1 (Art. 6-1) of the Convention (para.

55 above).

 

65.     The Commission concludes, by a vote of 15 to 1, that there has been no

violation of Article 13 (Art. 13) of the Convention in relation to the first

applicant's claim under Article 8 (Art. 8) of the Convention (para. 57 above).

 

66.     The Commission concludes, by a vote of 12 to 4, that there has been a

violation of Article 13 (Art. 13) of the Convention in relation to the second

applicant's claim under Article 8 (Art. 8) of the Convention (para. 62 above).

 

 

 

 

  Secretary to the Commission        Acting President of the Commission

 

 

 

 

         (H.C. KRÜGER)                         (J.A. FROWEIN)

 

APPENDIX I

 

 

 

History of the proceedings before the Commission

 

 

Date                    Item

 

----------------------------------------------------------------

 

31 December 1980        Introduction of application

 

23 March 1981           Registration of application

 

 

Examination of admissibility

 

20 September 1982       Rapporteur's request for information

                        from applicants

 

11 October and          Submission of information by applicants

30 November 1982

 

15 March 1984           Commission's decision to give notice of

                        the application to the respondent Government

                        and to invite them to submit written

                        observations on admissibility and merits

 

21 September 1984       Submission of Government's observations

 

18 February 1985        Submission of applicants' observations

                        in reply

 

13 May 1985             Commission's deliberations and decision to

                        deal separately with the applicants and

                        adjourn consideration of MM. Powell and

                        Rayner's circumstances

 

16 October 1985         Commission's hearing on admissibility and

                        merits in the case of the third applicant,

                        Mr.  Baggs.  Decision to declare his case

                        partially admissible

 

17 October 1985         Commission's decision to declare Mr.  Powell's

                        case partially admissible and to invite the

                        parties to provide further information about

                        Mr.  Rayner's case

 

27 November 1985,       Submission by the Government of information

29 January 1986         and further observations in Mr.  Rayner's

and 2 July 1986         case

 

9 December 1985,        Submission of Mr.  Rayner's comments in reply

7 January 1986,

22 and 24 April 1986

 

16 July 1986            Commission's decision to declare Mr.  Rayner's

                        case partially admissible

APPENDIX I

 

 

Date                    Item

 

----------------------------------------------------------------

 

 

Examination of the merits

 

29 July 1986            Submission by Government of further

                        observations in Mr.  Powell's case

 

1 September 1986        Submission by MM. Powell and Rayner of

and 9 March 1987        comments in reply

 

8 July 1987             Commission's adoption of friendly settlement,

                        Article 30 Report, in Mr.  Baggs' case

 

10 October 1987         Commission's deliberations and decision to

                        adjourn MM. Powell and Rayner's case pending

                        the Court's judgment in Boyle and Rice v.

                        the United Kingdom

 

27 April 1988           Court's judgment in the Boyle and Rice

                        case

 

18 May 1988             Applicants invited by the Secretary to the

                        Commission to submit comments on their case

                        in relation to this judgment

 

17 August and           Submission of applicants' comments on the

28 October 1988         Boyle and Rice judgment

 

4 October 1988          Submission by Government of their comments

                        on this judgment

 

18 January 1989         Commission's deliberations on the merits

                        and final votes

 

19 January 1989         Adoption of text of present Report

 

 

 

APPENDIX II

 

 

 

 

 

 

DECISION OF THE COMMISSION

 

 

AS TO THE ADMISSIBILITY OF

 

 

 

Application N° 9310/81

by Richard John POWELL

against the United Kingdom

 

 

        The European Commission of Human Rights sitting in private on

16 October 1985, the following members being present:

 

                 MM   J.A. FROWEIN, Acting President

                      E. BUSUTTIL

                      G. JÖRUNDSSON

                      G. TENEKIDES

                      B. KIERNAN

                      J.A. CARRILLO

                      A. WEITZEL

                      J.C. SOYER

                      H.G. SCHERMERS

                      H. DANELIUS

                      G. BATLINER

                      J. CAMPINOS

                      H. VANDENBERGHE

                  Sir Basil HALL

 

                  Mr J. RAYMOND, Deputy Secretary to the Commission

 

 

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

 

        Having regard to the application introduced on 31 December

1980 by the Federation of Heathrow Anti-Noise Groups (FHANG), and

later continued by the individual applicants 1.  Michal Anthony Rayner,

2.  Richard John Powell, 3 Frederick William Baggs, against the United

Kingdom and registered on 23 March 1981 under file N° 9310/91;

 

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;  and

 

- the Commission's decision of 15 March 1984 to bring the

  application of the three individual applicants to the notice of

  the respondent Government and invite them to submit written

  observations on its admissibility and merits;

 

- the decision of the same day rejecting the application in so far

  as it was lodged by the Federation of Heathrow Anti-Noise Groups;

 

- the observations submitted by the respondent Government on

  21 September 1984 and the observations in reply submitted by the

  applicants on 18 February 1985;

 

- the decision of 13 May 1985 to disjoin the individual applications

  and to hold an oral hearing in the case of Mr Baggs;

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The applicant, Richard John Powell, of British nationality,

born in 1928, director of a mining concern, is represented by the

Federation of Heathrow Anti-Noise Groups (FHANG) of which he is a

committee member, and by Mr N.C. Walsh of Messrs Blaker, Son and

Young, Solicitors in Lewes.

 

        His application concerns noise nuisance related to Heathrow

Airport.

 

 

A.      The applicant's situation

 

        The applicant lives with his family at Balblain, 36 Meadway,

Esher, Surrey.  He bought his house in 1957.  As it was in a quiet and

pleasant area surrounded by woodland and common land providing

extensive possibilities for outdoor activities there was a high

premium on housing property.  The property is several miles from

Heathrow Airport and just within the 35 NNI* contour.

 

        In 1972 the area became subject to a flight departure route

from Heathrow.  The route is in operation only about one third of the

year, during periods of easterly winds of a velocity of five knots or

more, which allegedly occurs usually during periods of fine weather in

the summer months.  Following objections the route was divided into

two sections.

 

 

B.      The development and importance of Heathrow Airport

 

        The airport was transferred by the Air Ministry to the Civil

Aviation Authorities on 1 January 1946.  In May 1952 the first jet

only airline service was inaugurated by BOAC.

 

 

____________

 

*NNI =  Noise and Number Index, involving a combination of the number

        of aircraft heard above a certain noise level, and the average

        noise of aircraft to yield a single value.  It appears that in

        the United Kingdom the officially advisd Criteria for Control

        of Development in areas affected by aircraft noise, expressed

        in NNI values are for dwellings:

 

        60 NNI + above - refuse

 

        40 - 50 NNI    - no major new developments

 

                         infilling only with appropriate sound

                         insulation

 

        35 - 39 NNI    - Permission not to be refused on noise grounds

                         alone

 

 

        Three terminals were built and opened in 1955, 1961 and 1968.

A fourth Terminal was scheduled for completion in 1985.  Construction

of a fifth Terminal or a third London Airport at Stansted is under

consideration.

 

        The amount of passengers handled by the airport increased

steadily.  In 1956 the airport handled three million passengers.  In

July 1963 the airport handled over one million passengers during one

month.  In 1973 the airport handled 22.4 million passengers on

international routes and 4.4 million passengers on domestic routes.

There was a resulting increase in aircraft movement.  For the six

months from June 1946 until December 1946 the movements were 2,046.  In

1960 the movements were 146,501.  In the twelve months preceding 29

February 1980 the movements were 303,110.  It is currently used by over

70 airlines and serves over 200 destinations worldwide.

 

        There are, as appears from statistics which are submitted by

the applicant and not contested by the respondent Government, between

700 and 900 air movements at the airport depending upon the type of

day.  Since 1970 Concorde is in service, but the total number of

Concorde movements is very small, amounting to 1% of all movements at

Heathrow.

 

        Since 1978 a helicopter link between Heathrow and Gatwick is

in existence, with about twenty flights per day.

 

        Heathrow is the United Kingdom's leading port in the value of

visible trade and in 1983 handled cargo valued at £16.6 billion.  It

plays a major part in earning for the United Kingdom the £4 billion

per annum which is spent by overseas visitors to the United Kingdom.

Over 20% of passengers use the airport as an interchange point.  At a

conservative estimate the airport contributes a net £200 million to

the United Kingdom's balance of payments and provides direct

employment for some 45,000 people.  The number of people employed

locally in servicing the industry is substantial.  Heathrow is also a

major contributor to the local government economy, paying

approximately £9 million in local rates and rents in the year

1982/83.

 

 

C.      Noise abatement measures

 

        Various measures have been taken to control the noise nuisance

connected with the running of an airport.

 

        (a) Noise certification

 

        Through international co-operation successive United Kingdom

Governments seek to make aircraft inherently quieter.  The main forum

for this activity is the International Civil Aviation Organisation

(ICAO), originally through its Committee on Aircraft Noise (CAN) and

now through its Committee on Aviation Environmental Protection (CAEP).

A series of standards has been developed leading to the phasing out of

aircraft unable to meet them.  In the United Kingdom effect is given

to the standards by means of an Air Navigation (Noise Certification)

Order.  In May 1979 new standards were developed to which the United

Kingdom gave effect by way of the present 1984 Order.  It includes,

inter alia:

 

- changes to the requirement for subsonic jet aeroplanes;

 

- requirements for future production of existing types of supersonic

  transports and their derived versions.

 

 

        (b)  Restrictions on night jet movements

 

        Specific steps have been taken by the United Kingdom

Government since 1971 to reduce progressively the number of night

movements and thereby achieve a reduction of night noise disturbance

at Heathrow.

 

        In 1978 the Government decided that all flights by noisier

aircraft would be phased out over a period of ten years.  This was to

be achieved by the creation of two quotas, one for noisier aircraft

movements and the other for quieter aircraft movements.  It was

decided that the former would be run down to zero over a ten year

period by equal annual cuts and that the quotas for quieter aircraft

movements would be increased at the same rate.

 

        Whether an aircraft qualifies for the quieter quota is

determined by its noise performance as measured by the area within the

95 PNdB contour.  According to the respondent Government, 95 PNdB is

the noise level below which, on the evidence currently available, the

average person sleeping in an insulated room is unlikely to be

awakened.  The specified criteria (4 square miles on take-off, 2.5

square miles on landing) correspond broadly to the performance of the

quieter, modern jet aircraft such as the A 300 B Airbus and the L1011

TriStar.  No night flights by the noisier types of aircraft will be

permitted from 1 April 1987.

 

 

        (c)  Noise monitoring

 

        Monitoring of aircraft noise on take-off was first carried out

in the early 1960's.  Since July 1974 the British Airport Authority

(BAA) have carried out monitoring on behalf of the Government using

automatic equiment.  This equipment consists of 13 Noise Monitoring

Terminals ("NMT") linked to a central processing and control unit.

The system is self-checking to ensure the validity of any noise

reading in excess of the noise limit for the period.

 

        The distribution of NMTs ensure that all departing jet

aircraft pass over or close to a monitoring point and the NMTs

accordingly provide a reliable check of the maximum noise levels

produced by all aircraft.

 

        The noise level of a jet aircraft taking-off must not exceed

the statutory limits of 110 PNdB by day (07.00-23.00 hours local time)

or 102 PNdB by night (23.00-07.00 hours local time) at the nearest

monitor after take-off.

 

        In the event of an infringement of the noise limit the British

Airports Authority inform the airline by letter and send a copy to the

Department of Transport.  It is the responsibility of the airline

operators to ensure that their aircraft are operated in such a manner

that the statutory limits are met.  To achieve this they may have to

pay special attention to take-off procedures and/or adjust take-off

weight to suit a particular departure route.

 

 

        (d)  Minimum noise routes

 

        Such routes are designed to avoid as far as possible the major

built up areas and thus to overfly the smallest number of people

consistent with the requirements of safety and air traffic management.

 

 

        (e)  Other operational measures

 

        In addition to the above principal measures other important

measures are in force aimed at reducing noise levels, such as special

approach procedures, minimum height requirements on take-off and

approach to land, runway alternation, limitation on air transport

movements, prior approval to operate, noise related landing charges.

 

 

        (f)  Noise insulation grant scheme

 

        The first scheme for the sound insulation of dwellings was

introduced for Heathrow in April 1966.  There were further schemes in

1972 and 1975, the latter being improved in 1977 by increasing the

financial limits.  The present scheme came into operation on

1 April 1980 by means of Statutory Instrument 1980 N° 153.

 

        A number of separate considerations entered into the

formulation of the present scheme.  In determining the area to be

covered, the Government considered that account should be taken of the

noise levels that people would be experiencing in the coming years,

since the progressive introduction into service of quieter aircraft

was expected to bring about a gradual reduction of noise levels around

Heathrow (and indeed around all other aiports).  The scheme therefore

concentrated on those areas that would still be experiencing

comparatively high noise levels in the mid-1980's.  The scheme also

concentrated on those areas where there is the greatest degree of

disturbance due to aircraft noise at night.  Within this area, the

amount of grant provided was intended to cover 100% of the reasonable

costs incurred.

 

        Under the present scheme, the boundary is based on the

forecast 50 NNI contour for 1985, and the composite of the 95 PNdB

noise footprint for quieter aircraft.  The 35NNI is generally

considered to indicate a low annoyance rating and 55 NNI a high

annoyance rating.

 

D.      The legal situation

 

        (a)  Remedies

 

        No specific remedies exist for individuals who might be

affected by aircraft noise in the vicinity of airports.  Section 76 of

the Civil Aviation Act 1982 (formerly section 40 of the Civil Aviation

Act 1949) provides as follows:

 

        "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 or of any Orders under section 62 above have been duly

        complied with and there has been no breach of section 81

        below."

 

Section 76 (2) of the 1982 Act (hereafter referred to as the CAA) goes

on to provide for strict liability (ie liability without proof of

negligence or intention) where material loss or damage to any person

or property on land or water by (inter alia) an aircraft in flight or

an object falling from an aircraft.

 

        The provisions of section 76 are comparable to those in the

Rome Convention on Damage Caused by Foreign Aircraft to Third Parties

on the Surface 1952 ("Rome Convention").

 

        The Noise Abatement Act 1960 specifically exempts aircraft

noise from its operations.

 

        (b)  Compensation for noise nuisance or purchase of affected

             property

 

        Compensation for loss of value of houses and land from airport

noise is provided for by the Land Compensation Act 1973.  To qualify

for compensation an applicant has to show that there is immunity on

the part of the airport from actions for nuisance.  Such immunity

arises by virtue of section 77 (2) of the Civil Aviation Act 1982 and

immunity extends to operations at Heathrow.

 

        The new rights to compensation were tied to new or altered

public works first brought into use after 16 October 1969.  For

reasons of principle and practice, intensification of an existing use,

ie from works, which had been first brought into use before the

relevant date for the purposes of the 1973 Act, was not subject to

compensation.

 

        The BAA being a public statutory authority does not have power

to acquire property near an airport unless it could show that the

acquisition of the property was necessary for the proper performance

of its function.

 

COMPLAINTS

 

        The applicant complains of the noise and/or vibration caused

by and in connection with the operation of and at Heathrow Airport.

He submits that aircraft routes have diminished the amenity premium on

houses in his area.  He points out that gardens and outdoor recreation

areas cannot be insulated from noise.  It was this factor which gave

rise to frustration and annoyance and was responsible for nervous

tension.

 

        He also complains that British law, unlike that of other High

Contracting States, excludes civil remedies for nuisance irrespective

of the degree of loss or damage sustained.  He invokes Articles 6 (1),

8 (1) and 13 of the Convention and Article 1 of Protocol N° 1.

 

 

PROCEEDINGS BEFORE THE COMMISSION

 

        The application was first registered on behalf of the

Federation of Heathrow Anti-Noise Groups (FHANG) only, as initially no

details about the situation of individual applicants were submitted.

 

        Statements concerning Mr Powell, as an individual applicant,

were submitted by FHANG on 11 October 1982.

 

        On 15 March 1984 the Commission rejected FHANG's complaint and

communicated the complaints of three individual applicants, including

Mr Powell's, to the respondent Government for observations on their

admissibility and merits.  The observations were submitted on

21 September 1984 and the applicants' reply on 18 February 1985.  On

13 May 1985 the Commission decided to deal separately with the three

applications and to hold an oral hearing in the case of Mr Baggs.

 

 

SUMMARY OF THE PARTIES' SUBMISSIONS

 

A.      The respondent Government

 

        1.  On the facts

 

        The respondent Government allege that about half a million

people live in the area within the 35 NNI contour being at a low level

of noise annoyance.  They point out that Mr Powell has not alleged to

have taken any steps to dispose of his house or to move out of the

area within the 35 NNI contour;  nor was it alleged that the noise

climate had made the property unsaleable or difficult to sell at a

realistic price.  Furthermore there was no evidence that the proximity

of the property at Heathrow Airport has had any adverse impact on its

value, properties in Esher being much sought after and maintaining

high market value.

 

        Admitting that jet aircraft are and will remain a source of

noise nuisance the respondent Government stress the major improvements

which have been brought about by the certification requirements and

other noise statement measures in reducing the noise level and in

phasing out noisier aircraft.

 

 

        2.  On the merits

 

        (a)  As to Article 8

 

        In the submission of the Government, while the scope of

Article 8 is wide, the Article could not on its proper construction be

extended to provide guarantees against any act which directly or

indirectly affects a person's comfort or enjoyment of his private or

home life.  Still less could the Article be interpreted as requiring a

State to take positive steps to prevent or control the activities of

non-Governmental bodies or private individuals which incidentally

have, or may have, this effect.

 

        Even if, contrary to the Government's contention,

unintentional disturbance to the comfort of home and family life was

properly to be regarded as falling within the scope of the protection

afforded by Article 8, it was clear that not all such disturbance

could give rise to an issue under the Article.  The right guaranteed

by Article 8 was a right to respect:  the obligation of respect

imposed on the State by the Article could not in any event be

interpreted as requiring the State to take all possible measures,

irrespective of the requirement of the public interest, so as to

prevent or control activities which might detrimentally affect the

quality of an individual's home or family life.  Where, as in the

present case, complaint was made of failure by the State to secure the

right to respect by preventing or controlling the detrimental effect

of noise nuisance, the Convention required the striking of a balance

between the competing demands or interests of the individual and of

society as a whole.

 

        In striking this balance, it was necessary to have regard in

any given case not merly to the nature and scope of the measures taken

to prevent or control the interference of which complaint is made but

also to the severity of the particular interference itself.

 

        Even if aircraft noise could give rise to an issue under

Article 8 of the Convention, there had on the facts of the present

case been no failure on the part of the Government to accord or secure

the right of the present applicant to respect for his private or

family life or his home, in view of

 

- the steps taken by the Government to strike a balance between the

  public interest in the safe and efficient operation of a major

  international airport and the private interests of those living in

  the immediate vicinity of the airport;

 

- the situation of the applicant Powell which was not comparable in

  severity to that of the applicant in the Arrondelle case;

 

- the extent to which it is open to the individual concerned to

  escape from the noise nuisance.

 

        If, contrary to the primary contention, noise disturbance from

aircraft using Heathrow Airport could give rise to any relevant

interference with the rights of the applicant under Article 8, such

interference was justified under paragraph 2 of the Article.

 

        Noise disturbance from aircraft on landing and taking off from

an airport was an inevitable consequence of the operation of an

airport.  The operation of Heathrow Airport, and the noise which

inevitably accompanied the provision of the airport facilities at

Heathrow, were plainly "in accordance with the law" for the purposes

of Article 8 (2):  the Airport was at all stages constructed and

developed in accordance with the relevant planning requirements and

its operation is carried on by the BAA pursuant to statutory powers

converred by the Airports Authority Act 1975.  The operating

(including the noise levels) of aircraft using the Airport was

similarly strictly governed by legislative provisions and was likewise

"in accordance with the law" for the purposes of Article 8 (2) of the

Convention.

 

        In so far as the noise disturbance from aircraft constituted a

relevant interference with the rights of the present applicant at all,

it was an interference which was necessary in a democratic society in

the interests of the economic well-being of the United Kingdom and for

the protection of the rights and freedoms of others.  The provision of

rapid means of travel and communication was of vital importance to the

economic well-being of a modern democratic society and an essential

element in this was the availability of adequate airport facilities

close to the main commercial and industrial cities of the country.

The economic importance of the two main London Airports had been

established and confirmed by a series of studies and reports relating

to airport development and strategy.

 

        Not only was Heathrow the United Kingdom's leading port in the

value of visible trade but the Airport played a central role in the

very substantial "invisible" earnings from overseas visitors to the

United Kingdom;  in addition, the Airport provided direct and indirect

employment for many thousands of people as well as contributing

substantially to the local economy through rates and rents.

 

        In providing such airport facilities, with the consequent

detrimental effects on the environment, the Government had not

exceeded any relevant principle of proportionality, in that all

reasonable and practicable measures had been and were being taken to

reduce, and to minimise the effects of, aircraft noise.

 

        (b)  As to Article 1 of Protocol N° 1

 

        This provision was not concerned with peacefulness in its

literal sense, but with unjustified or arbitrary interference with a

person's title to, or right to possess, use or otherwise deal with,

his own property, whether movable or immovable.  The concept of

peaceful enjoyment of possessions in Article 1 could not on its true

construction, be extended to provide guarantees against noise or other

environmental disturbance which, while affecting the comfort or

quality of life of an individual, has no effect on his title to, or

right to own, use or otherwise deal with, his property.  In this

regard, the Government again emphasised that there was no evidence to

suggest that the detrimental effect of the aircraft noise was such as

to render the applicant's property unsaleable or incapable of being

sold at a realistic market price having regard to the price originally

paid for the property.

 

        If, contrary to the primary contention, the applicant's

exposure to aircraft noise could and did constitute an interference

with his right to peaceful enjoyment of his property for the purposes

of the first sentence of Article 1, it did not follow that such

interference gave rise to a violation of the Article.

 

        Having regard to the particular circumstances of the

applicant and to the extensive measures taken by the Government to

reduce or control, and to abate the effect of, aircraft noise in the

vicinity of Heathrow Airport, the facts of the present application did

not disclose that the fair balance was upset between the protection of

the applicant's right of property and the requirements of the general

interest.

 

        Even if exposure of an individual to aircraft noise could

constitute an interference with the applicant's right to peaceful

enjoyment of his possessions such interference did not amount to a

violation.  Here again the notion of balance came into play and it

would be wrong to conclude that in all cases of an interference the

provision of compensation was a necessary ingredient of a fair balance

between public and private rights.  A right to compensation could only

form a necessary ingredient in a fair balance if there was evidence

that the noise had rendered the property unsaleable or incapable of

being sold at a realistic price.

 

        (c)  As to Article 6 (1) of the Convention

 

        Section 76 of the Civil Aviation Act 1982 was not arbitrary or

unreasonable.  It did not restrict the applicant's right of access to

a court in respect of nuisance from aircraft noise so as to constitute

a denial of such right in breach of Article 6 (1).  The section was

only applicable in so far as an aircraft was flying at a height above

the ground which is reasonable in all the circumstances of the case

and in so far as there has been  no breach of any Air Navigation Order

including orders relating to the noise certification of aircraft.

Whether section 76 did afford a defence or not in any individual case,

was a matter for the domestic courts to determine.  There existed no

procedural or substantive bars which would prevent a plaintiff from

invoking the jurisdiction of the court to test this matter.

 

        As in the case of section 141 of the Mental Health Act, the

effect of section 76 was in any event much more limited than might at

first sight appear.  For an actionable private nuisance to arise at

common law, it was necessary to do more than merely show an

interference with the plaintiff's use and enjoyment of his land.  A

plaintiff had additionally to establish that the interference was

unreasonable.  What is reasonable depended on all the circumstances of

the case, including such matters as the location of the land in

question and the nature and manner of performance of the activity

causing the nuisance.

 

        Thus even apart from section 76, the prospect of an owner of

property near to an airport successfully establishing a case in noise

nuisance against an airline operator in the absence of evidence that

the operator flew unreasonably low, or in breach of the relevant

statutory regulations, was very remote.  The limitations on the

liability of airline operators imposed by the operation of section 76

CAA, did not, therefore, impair the essence of the applicant's right

to a court or transgress the principle of proportionality in breach of

Article 6 (1) of the Convention.

 

 

        (d)  As to Article 13 of the Convention

 

        The primary contention is that the applicant's claims do not

fall within the scope of the Convention and that accordingly Article

13 is inapplicable.

 

        If, however, Article 13 was applicable its requirements were

satisfied.  It was true that the remedies available to the applicant

to complain about and to seek redress for the general noise climate,

which he experiences on his property, were very limited.  In so far as

he was able to show that a particular airline operator had flown at a

height that was unreasonable in all the circumstances, or had flown in

breach of the provisions of any air navigation order, he would of

course have his normal remedy against the airline operator in court

proceedings based in nuisance and/or in trespass.  The remedy might

take the form of an action for damages or, in the event of repeated

infringements, an injunction to restrain the operator from continuing

to fly in such a manner.  And the applicant would be entitled to test

in court whether the airline operator in question did fly unreasonably

low or in breach of any relevant Air Navigation Order.

 

        In addition, in the event that the applicant were able to show

that the Secretary of State had failed to enforce the statutory

requirements imposed by him under the Civil Aviation Act to reduce and

control aircraft noise, he would probably also have the remedy by way

of mandamus to compel the Secretary of State to ensure compliance with

the statutory requirements.

 

        Apart from these limited categories of cases, the applicant

would, at present, have no remedy whereby he could complain about

noise nuisance and obtain redress, there being no relevant

development, in his case, which would enable him to claim compensation

under the Land Compensation Act 1973.

 

        In this context it is pointed out that the approach in the

United Kingdom - in common with a number of States in Europe and

elsewhere - to the problems of aircraft noise has in general been to

endeavour to reduce and control the noise and to mitigate its effect,

rather than to provide concrete remedies.  It is sought to achieve

this end by a succession of measures which have had, and it is hoped

will continue to have, the desired effect of generally improving the

noise climate around airports, noise certification, night

restrictions, minimum noise routes, noise-related charges and

substantial noise insulation grants.

 

        While it is accepted that certain States have gone further and

have already introduced some system of compulsory acquisition of

noise-affected property, it is clear from a survey of measures dealing

with noise problems at airports, which was prepared by the

International Civil Aviation Organisation (ICAO) that such a system is

by no means universal, either in Europe or elsewhere.

 

        Notwithstanding the absence of such a measure, the admittedly

limited remedies available to the applicant, combined with the

extensive measures in force in the United Kingdom to control and abate

noise nuisance and to mitigate its effect, did satisfy the

requirements of Article 13 of the Convention, in so far as that

Article was applicable.

 

 

B.      The applicant

 

        (a)  As to Article 8 of the Convention and

             Article 1 of Protocol N° 1

 

52.     The disturbance complained of is, according to the applicant,

intentional because it arises as the direct result of a decision made

by the respondent Government with full knowledge of the injurious

effects on him and others in identical circumstances.  He considers

that the interference cannot be justified on economic grounds because

more efficient noise abatement measures would only involve limited

increase in public expenditure.  The alleged interference was also

disproportionate to the legitimate aim pursued.

 

 

        (b)  As to Articles 6 (1) and 13 of the Convention

 

        The statutory remedies referred to by the Government are, in

the applicant's submission, illusory and had no practical relevance in

his particular circumstances.  Section 76 CAA, whether it was regarded

as a bar to jurisdiction or as a limit of a cause of action, had the

effect of depriving him of a determination of his case on the merits.

Therefore the very essence of the right to a court, as guaranteed by

Article 6 (1), was impaired.  As he had no effective remedy to

complain about noise nuisance, Article 13 was likewise violated.

 

THE LAW

 

1.      The applicant complains of noise and vibration nuisance caused

by air traffic at Heathrow Airport.  In addition he complains that

section 76 Civil Aviation Act 1982 (CAA) prevents him from raising his

complaint before a national court.

 

2.      The Commission has already held in the Arrondelle case (Dec N°

7889/77, 15.7.80, DR 19, p 186) that the United Kingdom is answerable

under the Convention with regard to a complaint on aircraft noise in

the vicinity of British airports because it is a State body, namely

the British Aviation Authority (BAA) which is responsible for the

planning and construction fo civil airports.  In addition air traffic

is regulated by legislation, the Civil Aviation Act (CAA) 1982.

 

3.      The applicant complains of a continuing situation with regard

to which, uncontestably, no specific remedy exists under British law.

The applicant can, in these circumstances, be considered to have

complied with the condition of Article 26 of the Convention.

 

4.      The applicant first invoked Article 8 of the Convention.  He

submits that the noise nuisance complained of constitutes an

interference with the right to respect of their private life and of

their home.  The Commission considers that Article 8 (1) of the

Convention which guarantees this right cannot be narrowly interpreted

such as to apply only with regard to direct measures taken by the

authorities against the privacy and/or home of an individual.  It may

also cover indirect intrusions which are unavoidable consequences of

measures not at all directed against private individuals.  In this

context it has to be noted that a State not only has to respect but

also to protect the rights guaranteed by Article 8 (1) (see Eur Court

HR, Marckx Case, judgment of 13.6.79, Series A, Vol 31, para 31).

Considerable noise nuisance can undoubtedly affect the physical

well-being of a person and thus interfere with his private life.  It

may also deprive a person of the possibility of enjoying the amenities

of his home.  In the present case it is not necessary to determine as

to what level of intensity noise becomes an interference with the

rights guaranteed by Article 8 (1).

 

        Even assuming that the applicant can invoke Article 8 (1), the

interference complained of is in the circumstances of the present

cases, justified under paragraph 2 of this Article.

 

        It is not in question that the construction of Heathrow Airport

has a legal basis.  Furthermore, it cannot be doubted that the running

of an airport and the increasing use of jet aircraft is in the

interest of the economic well-being of a country and is also necessary

in a democratic society.  It furthers an important branch of industry

which is concerned with the construction of aircraft, it helps to

develop external and internal trade by providing speedy means of

transportation and it is also an important factor for the development

of tourism.

 

        The assumed interference with the applicant's right under

Article 8 (1) is also proportionate to the legitimate aim connected

with the running of the airport.  It is true that where a State is

allowed to restrict rights or freedoms guaranteed by the Convention,

the principle of proportionality may oblige it to make sure that such

restrictions do not create an unreasonable burden for the individual

concerned.

 

5.      The Commission notes in this context that the United Kingdom

authorities have, according to the applicant's own submissions, taken

various measures to control and limit the noise nuisance connected

with the running of Heathrow Airport.

 

        As far as the particular situation of the applicant Powell is

concerned, the flight departure route causing disturbance in his area

is in operation only about one third of the year and it was divided

into two sections in consequence of the objections raised by the

population concerned.  Mr Powell's property lies just within the 35

NNI contour which is, according to the uncontested submissions of the

respondent Government, an area of low noise annoyance.  The Commission

cannot, in these circumstances, find that the assumed interference

with the applicant Powell's right to respect for private life and for

his home is disproportionate to the legitimate aim connected with the

running of the airport.

 

6.      The applicant has further invoked Article 1 of Protocol N° 1

which guarantees the right to the peaceful enjoyment of possessions.

However, this provision is mainly concerned with the arbitrary

confiscation of property and does not, in principle, guarantee a right

to the peaceful enjoyment of possession in a pleasant environment.  It

is true that aircraft noise nuisance of considerable importance both

as to level and frequency may seriously affect the value of real

property or even render it unsaleable and thus amount to a partial

taking of property.  However, the applicant Powell is living, like

about half a million other people, in an area which is not, as was

already stated above, subjected to an extreme noise annoyance and

there is nothing to show that the value of his property was

substantially diminished on the ground of aircraft noise such as to

constitute a disproportionate burden amounting to a partial taking of

property necessitating payment of compensation.

 

        An examination by the Commission of this complaint does not

therefore disclose any appearance of a violation of Article 1 of

Protocol N° 1.

 

        It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 (2) of the

Convention.

 

7.     The applicant has also alleged a violation of Article 6 on the

ground that the Civil Aviation Act 1982 excludes a right of action

against trespass and nuisance by reason of the flight of an aircraft

over property and a right of action against nuisance by reason of the

noise or irritation caused by an aircraft or an aerodrome.

 

        The respondent Government consider that section 76 CAA does

not impair the very essence of a right to a court.

 

        It is true that, according to the jurisprudence of the

European Court of Human Rights, any civil claim must be able to be

submitted to a court (see Golder case, judgment of 21.2.75, para 35).

However Article 6 (1) does not impose requirements in respect of the

nature and scope of the relevant national law governing the "right" in

question.  Nor does the Commission consider that it is, in principle,

competent to determine or review the substantive content of the civil

law which ought to obtain in the State Party any more than it could in

respect of substantive criminal law.  As it has stated in the

Sporrong and Lönnroth case:

 

        "Whether a right is at all at issue in a particular case

        depends primarily on the legal system of the State concerned.

        It is true that the concept of a 'right' is itself autonomous

        to some degree.  Thus it is not decisive for the purposes of

        Article 6 (1) that a given privilege or interest which exists

        in a domestic legal system is not classified or described as

        a 'right' by that system.  However, it is clear that the

        Convention organs could not create by way of interpretation

        of Article 6 (1) a substantive right which has no legal basis

        whatsoever in the State concerned."  (Comm Report 8.10.80,

        para 150;  see also Dec N° 8282/78, 14.7.80, DR 21, p 109;

        Kaplan v the United Kingdom, Comm Report 17.7.80, DR 21,

        para 134.)

 

        Contrary to the cases so far considered by the Commission (see

Dec N° 7443/76, 10.12.76, DR 8, para 216;  N° 10096/82 and 10475/83,

both of 9.10.84) and the European Court of Human Rights (see

Ashingdane case, judgment of 28.5.85, Series A, Vol 93) the provision

in section 76 CAA does not confer an immunity from liability in

respect of actions of certain and distinct groups of persons (such as

soldiers or mental health patients as in the cases cited) but excludes

generally any action in respect of trespass or nuisance caused by

the flight of an aircraft at a reasonable height.  The Commission

considers that the purpose and effect of section 76 CAA is to exclude

generally any possible compensation claims for trespass and nuisance

and not just to limit jurisdiction of civil courts with regard to

certain classes of civil action.  The applicant, therefore, cannot

invoke under English law a substantive right to compensation for the

alleged noise nuisance.  The mere fact that consequently an action in

respect of aircraft noise nuisance would be devoid of all prospects of

success is not equivalent to depriving the applicant of the right of

access to a court.

 

        It follows that this particular complaint does not disclose

any appearance of a violation of the rights and freedoms set out in

the Convention and in particular in Article 6 (1).

 

        The application is to this extent again manifestly

ill-founded within the meaning of Article 27 (2) of the Convention.

 

8.      On the other hand the Commission considers that the

applicant's complaint of being deprived, as regards aircraft noise

nuisance, of any effective remedy before a national authority raises

important issues of law and fact under Article 13 of the Convention

which are of such complexity that their determination must depend upon

an examination on the merits.

 

        For these reasons, the Commission

 

        DECLARES ADMISSIBLE, without prejudging the merits of the

        case, the applicant's complaint that as regards aircraft

        noise he has no effective remedy before a national

        authority within the meaning of Article 13 of the Convention;

 

        DECLARES INADMISSIBLE the remainder of the application.

 

 

 

Deputy Secretary to the Commission     Acting President of the Commission

 

 

 

 

 

         (J. RAYMOND)                            (J.A. FROWEIN)

 

 

 

APPENDIX III

 

 

 

 

 

 

DECISION OF THE COMMISSION

 

 

AS TO THE ADMISSIBILITY OF

 

 

Application No. 9310/81

by Michael Anthony RAYNER

against the United Kingdom

 

 

        The European Commission of Human Rights sitting in private on

16 July 1986 , the following members being present:

 

                    MM. J.A. FROWEIN, Acting President

                        F. ERMACORA

                        E. BUSUTTIL

                        G. TENEKIDES

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

 

                   Mr.  H.C. KRÜGER, Secretary to the Commission

 

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

 

        Having regard to the application introduced on 31 December

1980 by the Federation of Heathrow Anti-Noise Groups (FHANG), and

later continued by the individual applicants 1.  Michael Anthony

RAYNER, 2.  Richard John POWELL, 3.  Frederick William BAGGS, against

the United Kingdom and registered on 23 March 1981 under file No.

9310/81;

 

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission; and

 

-       the Commission's decision of 15 March 1984 to bring the

        application of the three individual applicants to the notice of

        the respondent Government and invite them to submit written

        observations on its admissibility and merits;

 

-       the partial decision of the same day rejecting the application

        in so far as it was lodged by the Federation of Heathrow

        Anti-Noise Groups;

 

-       the observations submitted by the respondent Government on

        21 September 1984 and the observations in reply submitted by

        the applicants on 18 February 1985;

 

-       the decision of 13 May 1985 to disjoin the individual

        applications and to hold an oral hearing in the case of

        Mr Baggs;

 

-       the supplementary submissions of the present applicant dated

        9 December 1985, 22 and 24 April 1986;

 

-       the supplementary submissions of the respondent Government of

        27 November 1985 and 29 January 1986;

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The applicant, Michael Anthony Rayner, of British nationality,

is a partner with other members of his family in a long-established

farming business engaged in various enterprises and involving the

ownership of agricultural land and residential property for the use of

employees.  He is represented by the Federation of Heathrow Anti-Noise

Groups (FHANG) and by Mr N.C. Walsh of Messrs Blaker, Son and Young,

Solicitors in Lewes.

 

        His application concerns noise nuisance related to Heathrow

Airport.

 

 

A.      The applicant's situation

 

        The applicant lives with his family at 3 Riverside Bungalows,

Poyle Park, Colnbrook.  His home was acquired by his family in 1952,

at that time being occupied by a tenant.  The applicant took up

residence at the address indicated in 1961.  Prior to that he lived in

the village of Horton.  Most of the property owned or occupied by the

business of the applicant's family is within a one mile radius of the

applicant's home.  The home is situated about one and a third miles

west of and in a direct line with Heathrow's northern runway.

 

        It is regularly overflown during the daytime and to a limited

extent at nighttime and falls within a 60 NNI contour*.  The village

of Horton, where the applicant lived until 1961, is situated,

according to a map submitted by the applicant, within a 55 NNI

contour.

 

 

 

____________

 

*NNI =  Noise and Number Index, involving a combination of the number

        of aircraft heard above a certain noise level, and the average

        noise of aircraft to yield a single value.  It appears that in

        the United Kingdom the officially advised Criteria for Control

        of Development in areas affected by aircraft noise, expressed

        in NNI values, are for dwellings:

 

        60 NNI + above - refuse

 

        40 - 50 NNI    - no major new developments

 

                         infilling only with appropriate sound

                         insulation

 

        35 - 39 NNI    - Permission not to be refused on noise grounds

                         alone

 

 

        The applicant has submitted a report on aircraft noise

monitoring by the London Scientific Services Noise and Vibration Group

indicating that the average noise level at Poyle Park is 87 decibels

(dB) for landing aircraft and 86 dB for aircraft taking off.

Furthermore the report states that the percentage figure of noise

level in excess of 90 dB is 29% with regard to landing aircraft and

38% with regard to aircraft taking off.

 

        The figures on the average noise level submitted by the

respondent Government are 104-110 PndB (perceived noise decibels) for

landing aircraft and 93.2-111.3 PNdB for aircraft taking off.   This

corresponds, so the applicant points out, according to the standard

PNdB - dB conversion, to 91-97 dB and 77.8-98.3 dB

respectively.

 

 

B.      The development and importance of Heathrow Airport

 

        The airport was transferred by the Air Ministry to the Civil

Aviation Authorities on 1 January 1946.  In May 1952 the first jet

only airline service was inaugurated by BOAC.

 

        Three terminals were built and opened in 1955, 1961 and 1968.

A fourth Terminal was scheduled for completion in 1985.  Construction

of a fifth Terminal or a third London Airport at Stansted is under

consideration.

 

        The number of passengers handled by the airport increased

steadily.  In 1956 the airport handled three million passengers.  In

July 1963 the airport handled over one million passengers during one

month.  In 1973 the airport handled 22.4 million passengers on

international routes and 4.4 million passengers on domestic routes.

There was a resulting increase in aircraft movement.  For the six

months from June 1946 until December 1946 the movements were 2,046.  In

1960 the movements were 146,501.  In the twelve months preceding

29 February 1980 the movements were 303,110.  The airport is currently

used by over 70 airlines and serves over 200 destinations worldwide.

 

        There are, as appears from statistics which are submitted by

the applicant and not contested by the respondent Government, between

700 and 900 air movements at the airport depending upon the type of

day.  Since 1970 Concorde is in service, but the total number of

Concorde movements is very small, amounting to 1% of all movements at

Heathrow.

 

        Since 1978 a helicopter link between Heathrow and Gatwick is

in existence, with about twenty flights per day.

 

        Heathrow is the United Kingdom's leading port in the value of

visible trade and in 1983 handled cargo valued at £16.6 billion.  It

plays a major part in earning for the United Kingdom the £4 billion

per annum which is spent by overseas visitors to the United Kingdom.

Over 20% of passengers use the airport as an interchange point.  At a

conservative estimate the airport contributes a net £200 million to

the United Kingdom's balance of payments and provides direct

employment for some 45,000 people.  The number of people employed

locally in servicing the industry is substantial.  Heathrow is also a

major contributor to the local government economy, paying

approximately £9 million in local rates and rents in the year

1982/83.

 

C.      Noise abatement measures

 

        Various measures have been taken to control the noise nuisance

connected with the running of an airport.

 

        (a) Noise certification

 

        Through international co-operation successive United Kingdom

Governments seek to make aircraft inherently quieter.  The main forum

for this activity is the International Civil Aviation Organisation

(ICAO), originally through its Committee on Aircraft Noise (CAN) and

now through its Committee on Aviation Environmental Protection (CAEP).

A series of standards has been developed leading to the phasing out of

aircraft unable to meet them.  In the United Kingdom effect is given

to the standards by means of an Air Navigation (Noise Certification)

Order.  In May 1979 new standards were developed to which the United

Kingdom gave effect by way of the present 1984 Order.  It includes,

inter alia:

 

- changes to the requirement for subsonic jet aeroplanes;

 

- requirements for future production of existing types of supersonic

  transports and their derived versions.

 

 

        (b)  Restrictions on night jet movements

 

        Specific steps have been taken by the United Kingdom

Government since 1971 to reduce progressively the number of night

movements and thereby achieve a reduction of night noise disturbance

at Heathrow.

 

        In 1978 the Government decided that all flights by noisier

aircraft would be phased out over a period of ten years.  This was to

be achieved by the creation of two quotas, one for noisier aircraft

movements and the other for quieter aircraft movements.  It was

decided that the former would be run down to zero over a ten year

period by equal annual cuts and that the quotas for quieter aircraft

movements would be increased at the same rate.

 

        Whether an aircraft qualifies for the quieter quota is

determined by its noise performance as measured by the area within the

95 PNdB contour.  According to the respondent Government, 95 PNdB is

the noise level below which, on the evidence currently available, the

average person sleeping in an insulated room is unlikely to be

awakened.  The specified criteria (4 square miles on take-off, 2.5

square miles on landing) correspond broadly to the performance of the

quieter, modern jet aircraft such as the A 300 B Airbus and the L1011

TriStar.  No night flights by the noisier types of aircraft will be

permitted from 1 April 1987.

 

        (c)  Noise monitoring

 

        Monitoring of aircraft noise on take-off was first carried out

in the early 1960's.  Since July 1974 the British Airports Authority

(BAA) have carried out monitoring on behalf of the Government using

automatic equipment.  This equipment consists of 13 Noise Monitoring

Terminals ("NMT") linked to a central processing and control unit.

The system is self-checking to ensure the validity of any noise

reading in excess of the noise limit for the period.

 

        The distribution of NMTs ensure that all departing jet

aircraft pass over or close to a monitoring point and the NMTs

accordingly provide a reliable check of the maximum noise levels

produced by all aircraft.

 

        The noise level of a jet aircraft taking off must not exceed

the statutory limits of 110 PNdB by day (07.00-23.00 hours local time)

or 102 PNdB by night (23.00-07.00 hours local time) at the nearest

monitor after take-off.

 

        In the event of an infringement of the noise limit the British

Airports Authority inform the airline by letter and send a copy to the

Department of Transport.  It is the responsibility of the airline

operators to ensure that their aircraft are operated in such a manner

that the statutory limits are met.  To achieve this they may have to

pay special attention to take-off procedures and/or adjust take-off

weight to suit a particular departure route.

 

 

        (d)  Minimum noise routes

 

        Such routes are designed to avoid as far as possible the major

built up areas and thus to overfly the smallest number of people

consistent with the requirements of safety and air traffic management.

 

 

        (e)  Other operational measures

 

        In addition to the above principal measures other important

measures are in force aimed at reducing noise levels, such as special

approach procedures, minimum height requirements on take-off and

approach to land, runway alternation, limitation on air transport

movements, prior approval to operate, noise related landing charges.

 

 

        (f)  Noise insulation grant scheme

 

        The first scheme for the sound insulation of dwellings was

introduced for Heathrow in April 1966.  There were further schemes in

1972 and 1975, the latter being improved in 1977 by increasing the

financial limits.  The present scheme came into operation on

1 April 1980 by means of Statutory Instrument 1980 No. 153.

 

        A number of separate considerations entered into the

formulation of the present scheme.  In determining the area to be

covered, the Government considered that account should be taken of the

noise levels that people would be experiencing in the coming years,

since the progressive introduction into service of quieter aircraft

was expected to bring about a gradual reduction of noise levels around

Heathrow (and indeed around all other airports).  The scheme therefore

concentrated on those areas that would still be experiencing

comparatively high noise levels in the mid-1980's.  The scheme also

concentrated on those areas where there is the greatest degree of

disturbance due to aircraft noise at night.  Within this area, the

amount of grant provided was intended to cover 100% of the reasonable

costs incurred.

 

        Under the present scheme, the boundary is based on the

forecast 50 NNI contour for 1985, and the composite of the 95 PNdB

noise footprint for quieter aircraft.  The 35 NNI is generally

considered to indicate a low annoyance rating and 55 NNI a high

annoyance rating.   95 PNdB is the exterior noise level below which,

according to a Department of Trade Press Notice of 21 February 1978,

current evidence suggests that the average person in an insulated room

is unlikely to be awakened.  The area enclosed by these two contours

was then further extended to take account of natural boundaries, in

the majority of cases, roads.

 

        When the scheme was introduced in 1966 roof insulation was

optional within the grant level.  It was excluded from the 1980 Scheme

for all classes of dwelling, because such treatment was made

available in 1978 by the Department of the Environment's Home

Insulation Scheme.  It was felt that insulation for energy saving

purposes also provided suitable acoustic protection.

 

 

D.      The legal situation

 

        (a)  Remedies

 

        No specific remedies exist for individuals who might be

affected by aircraft noise in the vicinity of airports.  Section 76 of

the Civil Aviation Act 1982 (formerly section 40 of the Civil Aviation

Act 1949) provides as follows:

 

        "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 or of any Orders under section 62 above have been duly

        complied with and there has been no breach of section 81

        below."

 

Section 76 (2) of the 1982 Act goes on to provide for strict liability

(ie liability without proof of negligence or intention) where material

loss or damage to any person or property on land or water has been

caused by (inter alia) an aircraft in flight or an object falling from

an aircraft.

 

        The provisions of section 76 are comparable to those in the

Rome Convention on Damage Caused by Foreign Aircraft to Third Parties

on the Surface 1952 ("Rome Convention").

 

        The Noise Abatement Act 1960 specifically exempts aircraft

noise from its operations.

 

 

        (b)  Compensation for noise nuisance or purchase of affected

             property

 

        Compensation for loss of value of houses and land from airport

noise is provided for by the Land Compensation Act 1973.  To qualify

for compensation an applicant has to show that there is immunity on

the part of the airport from actions for nuisance.  Such immunity

arises by virtue of section 77 (2) of the Civil Aviation Act 1982 and

immunity extends to operations at Heathrow.

 

        The new rights to compensation were tied to new or altered

public works first brought into use after 16 October 1969.  For

reasons of principle and practice intensification of an existing use,

ie from works, which had been first brought into use before the

relevant date for the purposes of the 1973 Act, was not made

compensatable.

 

        The BAA being a public statutory authority does not have power

to acquire property near an airport unless it could show that the

acquisition of the property was necessary for the proper performance

of its function.

 

 

COMPLAINTS

 

        The applicant complains of the frequency of excessive noise

caused by landing or departing aircraft, the excessive noise levels

themselves and the lack of any adequate respite.  He also complains

that British law, unlike that of other High Contracting States,

excludes civil remedies for nuisance irrespective of the degree of

loss or damage sustained.  He invokes Articles 6 para. 1, 8 para. 1

and 13 of the Convention and Article 1 of Protocol No. 1.

 

 

PROCEEDINGS BEFORE THE COMMISSION

 

        The application was first registered on behalf of the

Federation of Heathrow Anti-Noise Groups (FHANG) only, as initially no

details about the situation of individual applicants were not

submitted.

 

        Statements concerning Mr Rayner, as an individual applicant,

were submitted by FHANG on 11 October 1982.

 

        On 15 March 1984 the Commission rejected FHANG's complaint and

communicated the complaints of three individual applicants, including

Mr Rayner, to the respondent Government for observations on their

admissibility and merits.  The observations were submitted on

21 September 1984 and the applicants' reply on 18 February 1985.  On

13 May 1985 the Commission decided to deal separately with the three

applications and to hold an oral hearing in the case of Mr Baggs.  On

16 October 1985 the Commission declared Mr Baggs' application partly

admissible in so far as it raises issues under Articles 8 and 13 of

the Convention and Article 1 of Protocol No. 1.  On 17 October 1985

Mr Powell's application was declared partly admissible in so far as a

violation of Article 13 of the Convention is alleged.

 

 

SUMMARY OF THE PARTIES' SUBMISSIONS

 

A.      The respondent Government

 

        1.  On the facts

 

        The number of people living in 1984 within the 60 NNI contour

was, according to the respondent Government, 10,000.  It is, however,

considered that in 1984 only 1,500 people around Heathrow Airport

experienced a noise exposure equal to or more than that of the

applicant.

 

        It is submitted that the northern runway is normally only used

when the southern runway is unserviceable, owing for example to

maintenance, much of which has to take place at night.  The applicant

would not therefore normally be overflown at night.  The number of

direct overflights he was likely to have experienced at the night

restriction period, i.e. from 23.30 to 06.00 hours, averaged over the

last twelve months (i.e.  November 1984 - November 1985), was two.

 

        The noise levels at night are likely to be the same as during

daytime except for the B 747 because a lower maximum noise limit is in

force at Heathrow Airport at night.  The average noise level of B 747s

at night over the applicant's property would therefore be of the order

of 103.4 PNdB (instead of 111.3 PNdB during the daytime).

 

        The average height (in feet) of arriving aircraft over the

applicant's property is 450, while departures vary according to

aircraft type:

 

        4 engined aircraft (B 747)              1,235

        3 engined aircraft (L 1011 and DC 10)   1,630

        2 engined aircraft                  2,027 - 2365.

 

The alleged heights indicated by the applicant were based on the

erroneous information that his property is approximately five

kilometres from the start of roll while the exact distance is six

kilometres.

 

        If the insulation of the applicant's home was in accordance

with the standards set up in connection with noise insulation grant

schemes then the level of insulation should be 40 dB and the noise

levels inside an insulated room should be reduced to one-sixteenth the

outside noise level.  But even if there was no sound insulation the

probability of being woken by aircraft noise was limited to once every

three nights.

 

        Finally it is pointed out that the applicant took up residence

at Colnbrook in 1961 when Heathrow was already a major international

airport, scheduled jet movements having commenced in 1958 and the

number of air movements being in excess of 150,000 per annum.  Also,

there was no evidence that the noise climate made the applicant's

property unsaleable or incapable of being sold at a realistic price.

 

 

        2.  On the merits

 

        (a)  As to Article 8 of the Convention

 

        In the submission of the Government, while the scope of

Article 8 is wide, the Article could not on its proper construction be

extended to provide guarantees against any act which directly or

indirectly affects a person's comfort or enjoyment of his private or

home life.  Still less could the Article be interpreted as requiring a

State to take positive steps to prevent or control the activities of

non-Governmental bodies or private individuals which incidentally

have, or may have, this effect.

 

        Even if, contrary to the Government's contention,

unintentional disturbance to the comfort of home and family life was

properly to be regarded as falling within the scope of the protection

afforded by Article 8, it was clear that not all such disturbance could

give rise to an issue under the Article.  The right guaranteed by

Article 8 was a right to respect:  the obligation of respect imposed on

the State by the Article could not in any event be interpreted as

requiring the State to take all possible measures, irrespective of the

requirement of the public interest, so as to prevent or control

activities which might detrimentally affect the quality of an

individual's home or family life.  Where, as in the present case,

complaint was made of failure by the State to secure the right to

respect by preventing or controlling the detrimental effect of noise

nuisance, the Convention required the striking of a balance between

the competing demands or interests of the individual and of society as

a whole.

 

        In striking this balance, it was necessary to have regard in

any given case not merely to the nature and scope of the measures taken

to prevent or control the interference of which complaint is made but

also to the severity of the particular interference itself.

 

        Even if aircraft noise could give rise to an issue under Article 8

of the Convention, there had on the facts of the present case been no

failure on the part of the Government to accord or secure the right of

the present applicant to respect for his private or family life or his

home, in view of

 

- the steps taken by the Government to strike a balance between the

  public interest in the safe and efficient operation of a major

  international airport and the private interests of those living in

  the immediate vicinity of the airport;

 

- the situation of the applicant which was not comparable in

  severity to that of the applicant in the Arrondelle case;

 

- the extent to which it is open to the individual concerned to

  escape from the noise nuisance.

 

As regards the latter point it is submitted that the present

applicant's property is neither unsaleable nor even incapable of being

sold at a realistic market price.

 

        If, contrary to the primary contention, noise disturbance from

aircraft using Heathrow Airport could give rise to any relevant

interference with the rights of the applicant under Article 8, such

interference was justified under paragraph 2 of the Article.

 

        Noise disturbance from aircraft on landing and taking off from

an airport was an inevitable consequence of the operation of an

airport.  The operation of Heathrow Airport, and the noise which

inevitably accompanied the provision of the airport facilities at

Heathrow, were plainly "in accordance with the law" for the purposes

of Article 8 para. 2:  the Airport was at all stages constructed and

developed in accordance with the relevant planning requirements and

its operation is carried on by the BAA pursuant to statutory powers

conferred by the Airports Authority Act 1975.  The operating

(including the noise levels) of aircraft using the Airport was

similarly strictly governed by legislative provisions and was likewise

"in accordance with the law" for the purposes of Article 8 para. 2 of

the Convention.

 

        In so far as the noise disturbance from aircraft constituted a

relevant interference with the rights of the present applicant at all,

it was an interference which was necessary in a democratic society in

the interests of the economic well-being of the United Kingdom and for

the protection of the rights and freedoms of others.  The provision of

rapid means of travel and communication was of vital importance to the

economic well-being of a modern democratic society and an essential

element in this was the availability of adequate airport facilities

close to the main commercial and industrial cities of the country.

The economic importance of the two main London Airports had been

established and confirmed by a series of studies and reports relating

to airport development and strategy.

 

        Not only was Heathrow the United Kingdom's leading port in the

value of visible trade but the Airport played a central role in the

very substantial "invisible" earnings from overseas visitors to the

United Kingdom;  in addition, the Airport provided direct and indirect

employment for many thousands of people as well as contributing

substantially to the local economy through rates and rents.

 

        In providing such airport facilities, with the consequent

detrimental effects on the environment, the Government had not

exceeded any relevant principle of proportionality, in that all

reasonable and practicable measures had been and were being taken to

reduce, and to minimise the effects of, aircraft noise.

 

 

        (b)  As to Article 1 of Protocol No. 1

 

        This provision was not concerned with peacefulness in its

literal sense, but with unjustified or arbitrary interference with a

person's title to, or right to possess, use or otherwise deal with,

his own property, whether movable or immovable.  The concept of

peaceful enjoyment of possessions in Article 1 could not, on its true

construction, be extended to provide guarantees against noise or other

environmental disturbance which, while affecting the comfort or

quality of life of an individual, has no effect on his title to, or

right to own, use or otherwise deal with, his property.  In this

regard, the Government again emphasised that there was no evidence to

suggest that the detrimental effect of the aircraft noise was such as

to render the applicant's property unsaleable or incapable of being

sold at a realistic market price having regard to the price originally

paid for the property.

 

        If, contrary to the primary contention, the applicant's

exposure to aircraft noise could and did constitute an interference

with his right to peaceful enjoyment of his property for the purposes

of the first sentence of Article 1, it did not follow that such

interference gave rise to a violation of the Article.

 

        Having regard to the particular circumstances of the

applicant and to the extensive mesures taken by the Government to

reduce or control, and to abate the effect of, aircraft noise in the

vicinity of Heathrow Airport, the facts of the present application did

not disclose that the fair balance was upset between the protection of

the applicant's right of property and the requirements of the general

interest.

 

        Even if exposure of an individual to aircraft noise could

constitute an interference with the applicant's right to peaceful

enjoyment of his possessions such interference did not amount to a

violation.  Here again the notion of balance came into play and it

would be wrong to conclude that in all cases of an interference the

provision of compensation was a necessary ingredient of a fair balance

between public and private rights.  A right to compensation could only

form a necessary ingredient in a fair balance if there was evidence

that the noise had rendered the property unsaleable or incapable of

being sold at a realistic price.

 

 

        (c)  As to Article 6 para. 1 of the Convention

 

        Section 76 of the Civil Aviation Act 1982 was not arbitrary or

unreasonable.  It did not restrict the applicant's right of access to

a court in respect of nuisance from aircraft noise so as to constitute

a denial of such right in breach of Article 6 para. 1.  The section

 

was only applicable in so far as an aircraft was flying at a height

above the ground which is reasonable in all the circumstances of the

case and in so far as there has been  no breach of any Air Navigation

Order including orders relating to the noise certification of

aircraft.  Whether section 76 did afford a defence or not in any

individual case, was a matter for the domestic courts to determine.

There existed no procedural or substantive bars which would prevent a

plaintiff from invoking the jurisdiction of the court to test this

matter.

 

        As in the case of section 141 of the Mental Health Act, the

effect of section 76 was in any event much more limited than might at

first sight appear.  For an actionable private nuisance to arise at

common law, it was necessary to do more than merely show an

interference with the plaintiff's use and enjoyment of his land.  A

plaintiff had additionally to establish that the interference was

unreasonable.  What is reasonable depended on all the circumstances of

the case, including such matters as the location of the land in

question and the nature and manner of performance of the activity

causing the nuisance.

 

        Thus even apart from section 76, the prospect of an owner of

property near to an airport successfully establishing a case in noise

nuisance against an airline operator in the absence of evidence that

the operator flew unreasonably low, or in breach of the relevant

statutory regulations, was a very remote prospect.  The limitations on

the liability of airline operators imposed by the operation of

section 76 CAA, did not, therefore, impair the essence of the

applicant's right to a court or transgress the principle of

proportionality in breach of Article 6 para. 1 of the Convention.

 

 

        (d)  As to Article 13 of the Convention

 

        The primary contention is that the applicant's claims do not

fall within the scope of the Convention and that accordingly Article 13

is inapplicable.

 

        If, however, Article 13 was applicable its requirements were

satisfied.  It was true that the remedies available to the applicant

to complain about and to seek redress for the general noise climate,

which he experiences on his property, were very limited.  In so far as

he was able to show that a particular airline operator had flown at a

height that was unreasonable in all the circumstances, or had flown in

breach of the provisions of any air navigation order, he would of

course have his normal remedy against the airline operator in court

proceedings based in nuisance and/or in trespass.  The remedy might

take the form of an action for damages or, in the event of repeated

infringements, an injunction to restrain the operator from continuing

to fly in such a manner.  And the applicant would be entitled to test

in court whether the airline operator in question did fly unreasonably

low or in breach of any relevant Air Navigation Order.

 

        In addition, in the event that the applicant were able to show

that the Secretary of State had failed to enforce the statutory

requirements imposed by him under the Civil Aviation Act to reduce and

control aircraft noise, he would probably also have the remedy by way

of mandamus to compel the Secretary of State to ensure compliance with

the statutory requirements.

 

        Apart from these limited categories of cases, the applicant

would, at present, have no remedy whereby he could complain about

noise nuisance and obtain redress, there being no relevant

development, in his case, which would enable him to claim compensation

under the Land Compensation Act 1973.

 

        In this context it is pointed out that the approach in the

United Kingdom - in common with a number of States in Europe and

elsewhere - to the problems of aircraft noise has in general been to

endeavour to reduce and control the noise and to mitigate its effect,

rather than to provide concrete remedies.  It is sought to achieve

this end by a succession of measures which have had, and it is hoped

will continue to have, the desired effect of generally improving the

noise climate around airports, noise certification, night

restrictions, minimum noise routes, noise-related charges and

substantial noise insulation grants.

 

        While it is accepted that certain States have gone further and

have already introduced some system of compulsory acquisition of

noise-affected property, it is clear from a survey of measures dealing

with noise problems at airports, which was prepared by the

International Civil Aviation Organisation (ICAO), that such a system is

by no means universal, either in Europe or elsewhere.

 

        Notwithstanding the absence of such a measure, the admittedly

limited remedies available to the applicant, combined with the

extensive measures in force in the United Kingdom to control and abate

noise nuisance and to mitigate its effect, did satisfy the

requirements of Article 13 of the Convention, in so far as that Article

was applicable.

 

 

B.      The applicant

 

        1.  On the facts

 

        According to a recent report of the Scientific Services Branch

(SSB) Noise Group, submitted by the applicant, the applicant's

property is regularly overflown at night, the average number of

landing aircraft being one and three for departing aircraft.  There

are consequently one or two events on any one night giving rise to a

maximum noise level of more than 90 dB, and inhabitants are likely

to be woken by aircraft once every other night.

 

        The applicant points out that his property is nearly as close

to the end of the northern runway as is the property of the applicant

Baggs to the end of the southern runway.  The two runways are only a

kilometre apart, so that his property is also affected by aircraft

using the southern runway, in particular aircraft heading for the

Burnham route passing near his property.

 

        The height of aircraft varies considerably according to

weight, weather, wind velocity, temperature etc.  The average height

of arriving aircraft is indicated to be 300 ft. and of departing

aircraft between 700 and 1,600 ft.

 

        It is alleged to be quite common for aircraft to be landing

every one-and-a-half minutes for long periods of time.  The pattern

for take-off can vary but regular take-offs continue at this sort of

frequency for several hours.  Therefore, in all the circumstances,

noise exposure from 50 NNI to the airport is, in the applicant's

submission, unacceptable.  The Government's allegations on the effects

of noise insulation are considered to be unrealistic.  Sound

insulation only provides partial reduction of noise with normal

conversation and listening to radio or television remaining affected.

Also, it provided of course no relief with regard to all outdoor

activities.

 

        According to the applicant, some 78,850 people live within

the 60 NNI contour, relating to an approximate total of 29,600

residential units of occupation.  Unlike the applicant Baggs, the

present applicant does not wish to be bought out.  His family has

farmed in the area for generations and he does not want to move.  He

has never put the property on the market and to that extent has not

personally been a victim of the non-appreciation in property values

complained of by Mr Baggs.  He considers, however, that if he were to

try to sell his property the sale price would have to be low.

 

 

        2.  On the merits

 

        (a)  As to Article 8 of the Convention and Article 1

             of Protocol No. 1

 

        The disturbance complained of is, according to the applicant,

intentional because it arises as the direct result of a decision made

by the respondent Government with full knowledge of the injurious

effects on him and others in identical circumstances.

 

        He denies that the noise abatement measures so far taken

strike a balance between public and private interest.  The lack of

compensation had an entirely disproportionate effect on a few

individuals.  The cost to the BAA could be spread among the millions

of users at Heathrow.  At present, the burden fell on the relatively

small number of people living in such proximity to the runways that

they suffer a nuisance, and not a mere inconvenience, from the noise.

 

        (b)  As to Articles 6 para. 1 and 13 of the Convention

 

        The statutory remedies referred to by the Government are, in

the applicant's submissions, illusory and have no practical relevance

in his particular circumstances.

 

        He argues that the Commission's decisions of 16 and 17 October

1985 in the parallel and disjoined cases Baggs and Powell v. the

United Kingdom (also registered under Application No. 9310/81) are

based on a misunderstanding of the English law in so far as they

declare the complaints under Article 6 para. 1 to be manifestly ill-

 

founded.  Citing various decisions of English courts he submits that

in English law a plaintiff normally can sue in nuisance for

unreasonable noise levels.  Only the statute bar of section 76 CAA

prevented him from invoking this right.  Similar to the Ashingdane

case, where the bar did not arise from the plaintiff's status but from

the immunity of the Secretary of State and the Area Health Authority,

an individual wishing to sue in nuisance on account of unreasonable

levels of aircraft noise is not prevented from doing so by virtue of

his status but by virtue of the immunity conferred on the BAA and

airline operators according to section 76 CAA.  The immunity is

defined in terms of facts (flight of aircraft at a reasonable height)

but obviously confers immunity on the persons or bodies legally

responsible for such flights, just as the Mental Health Act conferred

immunity on persons otherwise legally responsible for their actions.

 

        Allowing individuals to sue in nuisance would not open the

door to vexatious litigation but would provide an effective remedy.

To sue in nuisance one would have to prove unreasonable user.  The

running of an airport is, however, not as such, unreasonable user.  It

would therefore be necessary to show that noise levels were

unreasonable even given the fact of proximity to an airport.  If the

Government and the British Airports Authority had done all they could

by means, for example, of regulating night take-offs and landings,

effective noise monitoring and insulation grants etc., then no

plaintiff would ever succeed.

 

        In any event whether section 76 CAA 1982 was regarded as a bar

to jurisdiction or as a limit of a cause of action, it had the effect

of depriving him of a determination of his case on the merits.

Therefore the very essence of the right to a court, as guaranteed by

Article 6 para. 1, was impaired.  As he had no effective remedy to

complain about noise nuisance, Article 13 was likewise violated.

 

 

THE LAW

 

1.      The applicant complains of noise and vibration nuisance caused

by air traffic at Heathrow Airport.  In addition he complains that

section 76 Civil Aviation Act (CAA) 1982 prevents him from raising his

complaint before a national court.

 

2.      The Commission has already held in the Arrondelle case (No.

7889/77, Dec. 15.7.80, D.R. 19, p. 186) that the United Kingdom is

answerable under the Convention with regard to a complaint on aircraft

noise in the vicinity of British airports because it is a State body,

namely the British Airports Authority (BAA) which is responsible for

the planning and construction of civil airports.  In addition air

traffic is regulated by legislation, the Civil Aviation Act (CAA)

1982.

 

3.      The applicant complains of a continuing situation with regard

to which, uncontestably, no specific remedy exists under British law.

The applicant can, in these circumstances, be considered to have

complied with the condition of Article 26 of the Convention.

 

4.      The applicant first invoked Article 8 of the Convention.  He

submits that the noise nuisance complained of constitutes an

interference with the right to respect of his private life and of

his home.

 

        The Commission considers that Article 8 para. 1 of the

Convention which guarantees this right cannot be interpreted so as to

apply only with regard to direct measures taken by the authorities

against the privacy and/or home of an individual.  It may also cover

indirect intrusions which are unavoidable consequences of measures not

at all directed against private individuals.  In this context it has

to be noted that a State has not only to respect but also to protect

the rights guaranteed by Article 8 para. 1 (see Eur.  Court H.R.,

Marckx judgment of 13 June 1979, Series A No. 31, para. 31).

Considerable noise nuisance can undoubtedly affect the physical

well-being of a person and thus interfere with his private life.  It

may also deprive a person of the possibility of enjoying the amenities

of his home.  In the present case the 60 NNI contour within which the

applicant is living is uncontestedly an area in which, due to

substantial noise nuisance, new housing developments are not

permitted.  The average noise level of aircraft overflying the

applicant's home attains, according to the respondent Government's

admissions, peaks of about 110 PNdB.  It can be deduced from the

Department of Trade's Press Notice of 21 February 1978, that such

noise level is likely to awaken persons sleeping in an insulated room.

 

        The Commission considers that in the given circumstances the

level of noise amounts to an interference with the above-mentioned

rights guaranteed by Article 8 para. 1.

 

5.      It therefore remains to be examined whether the interference

is justified under para. 2 of the Article.

 

        It is not in question that the operation of Heathrow Airport has a

legal basis.  Furthermore, it cannot be doubted that the running of an

airport and the increasing use of jet aircraft are in the interest of

the economic well-being of a country and are also necessary in a

democratic society.  It is essential for developing external and

internal trade by providing speedy means of transportation and it is

also an important factor for the development of tourism.

 

        The interference with the applicant's right under Article 8

para. 1 is also proportionate to the legitimate aim connected with the

running of the airport.  It is true that where a State is allowed to

restrict rights or freedoms guaranteed by the Convention, the

principle of proportionality may oblige it to make sure that such

restrictions do not create an unreasonable burden for the individual

concerned.

 

        The Commission notes in this context that the United Kingdom

authorities have, according to the applicant's own submissions, taken

various measures to control and limit the noise nuisance connected

with the running of Heathrow Airport.   In particular it has not been

disputed by the applicant that he qualified for a noise insulation

grant.

 

        It has further to be noted that the applicant took up

residence at Poyle Park in 1961 while before he lived a little further

away from the airport and its northern runway, namely in the village

of Horton which is at present only within the 55 NNI contour.  In 1961

jet aircraft were already in service.  Also, the airport had already

expanded considerably.  The applicant must therefore have realised

that he did not choose a very peaceful environment for his home.  He

has not alleged that at the time he had no reason to expect further

expansion of air traffic increasing the noise level at his site, or

that he had no other choice than to take up residence at Poyle Park.

He thus took the risk of choosing a home in an environment which was

likely to deteriorate.

 

        To this extent the case can be distinguished from the case of

the applicant Baggs who finished the construction of his home in 1950.

 

        Furthermore, the present case is distinguishable from the

Baggs case in so far as the applicant Baggs is living within a

72.5 NNI contour where the maximum noise levels considerably exceed

those indicated for the present applicant's home.  It has to be noted

in this context that the PndB scale is logarithmic, which means that

every increase of 10 represents a doubling of the loudness.

 

        According to the applicant's own submissions an important

number of people live within the 60 NNI contour while uncontestedly

only very few people are exposed to the noise level the applicant

Baggs has to endure and which renders Mr Baggs' property practically

unsaleable.  As the Convention does not in principle guarantee a right

to a peaceful environment, noise nuisance for which a Government can,

as in the present case, be held responsible, cannot be considered to

constitute an unreasonable burden for the individuals concerned if

they have the possibility of moving elsewhere without substantial

difficulties and losses.  The present applicant has himself stated in

a letter of 5 February 1985 submitted with his counsel's observations

of 18 February 1985 on admissibility and merits, that local demand for

houses was sufficient to ensure rapid sale.  Although the sale of his

own property may, as he alleges, encounter certain difficulties there

is nothing to show that such difficulties, which are partly due to the

fact that the applicant's property is used for farming, are

insurmountable.

 

        The Commission concludes that the circumstances of the present

case do not disclose that the applicant is subjected to a degree and

frequency of noise nuisance which would have to be considered

intolerable and exceptional compared with the situation of a large

number of people living within the vicinity of an airport.  The

applicant's situation is not identical with that of the applicant

Baggs who cannot escape the noise nuisance without sacrificing his

house, because it is practically unsaleable.  The interference

complained of is consequently not disproportionate to the legitimate

aim connected with the running of the airport.  It follows that this

part of the application is manifestly ill-founded within the meaning

of Article 27 para. 2 of the Convention.

 

6.      The applicant has further invoked Article 1 of Protocol No. 1

which guarantees the right to the peaceful enjoyment of possessions.

This provision is mainly concerned with the arbitrary confiscation of

property and does not, in principle, guarantee a right to the peaceful

enjoyment of possessions in a pleasant environment.  It is true that

aircraft noise nuisance of considerable importance both as to level

and frequency may seriously affect the value of real property or even

render it unsaleable and thus amount to a partial taking of property.

However, the applicant has not submitted any evidence showing that the

value of his property was substantially diminished on the ground of

aircraft noise so as to constitute a disproportionate burden amounting

to a partial taking of property necessitating payment of compensation.

 

        An examination by the Commission of this complaint does not

therefore disclose any appearance of a violation of Article 1 of

Protocol No. 1.

 

        It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2 of the

Convention.

 

7.     The applicant has also alleged a violation of Article 6 of the

Convention on the ground that the Civil Aviation Act 1982 excludes a

right of action against trespass and nuisance by reason of the flight

of an aircraft over property and a right of action against nuisance by

reason of the noise or irritation caused by an aircraft or an

aerodrome.

 

        The respondent Government consider that section 76 CAA does

not impair the very essence of a right to a court.

 

        It is true that, according to the jurisprudence of the

European Court of Human Rights, any civil claim must be able to be

submitted to a court (Eur.  Court H.R., Golder judgment of 21 February

1975, Series A No. 18, p. 18, para. 36).  However Article 6 para. 1

does not impose requirements in respect of the nature and scope of the

relevant national law governing the "right" in question.  Nor does the

Commission consider that it is, in principle, competent to determine

or review the substantive content of the civil law which ought to

obtain in the State Party any more than it could in respect of

substantive criminal law.  As it has been stated in the Sporrong and

Lönnroth case:

 

        "Whether a right is at all at issue in a particular case

        depends primarily on the legal system of the State concerned.

        It is true that the concept of a 'right' is itself autonomous

        to some degree.  Thus it is not decisive for the purposes of

        Article 6 para. 1 that a given privilege or interest which exists in

        a domestic legal system is not classified or described as a

        'right' by that system.  However, it is clear that the

        Convention organs could not create by way of interpretation

        of Article 6 para. 1 a substantive right which has no legal basis

        whatsoever in the State concerned."  (Comm.  Report 8.10.80,

        para. 150;  see also No. 8282/78, Dec. 14.7.80, D.R. 21, p. 109;

        Kaplan v. the United Kingdom, Comm.  Report 17.7.80, D.R. 21,

        para. 134.)

 

        Unlike in the cases so far considered by the Commission (see

No. 7443/76, Dec. 10.12.76, D.R. 8, para. 216;  Nos. 10096/82 and

10475/83, both of 9.10.84) and the European Court of Human Rights (see

Ashingdane judgment of 28 May 1985, Series A No. 93) the provision in

section 76 CAA does not confer an immunity from liability in respect

of actions of certain and distinct groups of persons (such as

soldiers or mental health patients as in the cases cited) but excludes

generally any action in respect of trespass or nuisance caused by

the flight of an aircraft at a reasonable height regardless of the

status of the possible claimant.  The Commission considers that the

purpose and effect of section 76 CAA is to exclude generally any

possible compensation claims for trespass and nuisance and not just to

limit jurisdiction of civil courts with regard to certain classes of

civil action.  The applicant, therefore, cannot invoke under English

law a substantive right to compensation for the alleged noise

nuisance.  The mere fact that consequently an action in respect of

aircraft noise nuisance would be devoid of all prospects of success is

not equivalent to depriving the applicant of the right of access to a

court.

 

        The Commission also notes in this context that the applicant

himself admitted that if section 76 CAA would not apply, to sue in

nuisance one would have to prove unreasonable user.  His general

contention is, however, that despite the various noise abatement

measures taken by the competent authorities, his rights as guaranteed

by the Convention are violated on account of aircraft noise nuisance.

In these circumstances it cannot be considered to be clearly

established that under English law he could invoke before a court a

substantive right were he not barred from doing so by section 76 CAA.

 

        It follows that this particular complaint does not disclose

any appearance of a violation of the rights and freedoms set out in

the Convention and in particular in Article 6 para. 1.

 

        The application is to this extent again manifestly

ill-founded within the meaning of Article 27 para. 2 of the Convention.

 

8.      On the other hand the Commission considers that the

applicant's complaint of being deprived, as regards aircraft noise

nuisance, of any effective remedy before a national authority raises

important issues of law and fact under Article 13 of the Convention

which are of such complexity that their determination must depend upon

an examination on the merits.

 

        For these reasons, the Commission

 

        DECLARES ADMISSIBLE, without prejudging the merits of the

        case, the applicant's complaint that as regards aircraft

        noise he has no effective remedy before a national

        authority within the meaning of Article 13 of the Convention;

 

        DECLARES INADMISSIBLE the remainder of the application.

 

 

 

   Secretary to the Commission     Acting President of the Commission

 

 

 

 

          (H.C. KRÜGER)                      (J.A. FROWEIN)

 

 

Dissenting opinion of Mr.  Danelius joined

by MM. Jörundsson and Weitzel and Mrs.  Liddy

 

 

 

 

        According to the case-law of the European Court of Human

Rights, which has been followed by the Commission on many occasions,

Article 13 of the Convention shall be so interpreted as to require a

domestic remedy only when there is an "arguable claim" that a

substantive provision of the Convention has been violated (see, for

instance, the Leander judgment of 26 March 1987, Series A No. 116,

para. 77).  In two recent judgments, the Court has further developed

this case-law by referring to the link that exists between an

"arguable claim" and the concept of "manifestly ill-founded" in

Article 27 para. 2 of the Convention.  In the case of Boyle and Rice,

the Court stated that, "On the ordinary meaning of the words, it is

difficult to conceive how a claim that is 'manifestly ill-founded' can

nevertheless be 'arguable', and vice versa" (judgment of 27 April

1988, Series A no. 131, para. 54).  In the case of Plattform 'Ärzte für

das Leben', the Court proceeded to an examination of whether a claim

that the requirements of a substantive Article of the Convention had

not been complied with was arguable "notwithstanding that the

Commission dismissed it as manifestly ill-founded" (judgment of

21 June 1988, Series A no. 139, para. 27).

 

        In the Boyle and Rice judgment, the Court further stated that

it did not follow from the relationship between the two concepts

"arguable claim" and "manifestly ill-founded" that "the Court must

hold a claim to be excluded from the operation of Article 13 if the

Commission has previously declared it manifestly ill-founded under the

substantive Article" (judgment, para. 54).  This must be so, because

the Court might well disagree with the Commission as to whether the

claim was in fact manifestly ill-founded.

 

        On the other hand, it would seem to follow from the Court's

reasoning that in cases where the Commission finds a claim that one of

the substantive Articles of the Convention has been violated to be

manifestly ill-founded, the Commission should, at least as a rule,

also find the claim not to be arguable and thus not to require a

remedy under Article 13.

 

        In the present case, the Commission has found the applicants'

complaints under Articles 6 and 8 of the Convention and Article 1 of

Protocol No. 1 to be manifestly ill-founded.  There seems to be no

special reason why the Commission should nevertheless consider the

applicants' claims to be arguable when considered on the basis of

Article 13 of the Convention.

 

        For these reasons, I have reached the conclusion that there

has been no violation of Article 13 in regard to either of the

applicants in the present case.

APPENDIX I

 

 

 

History of the proceedings before the Commission

 

 

Date                    Item

 

----------------------------------------------------------------

 

31 December 1980        Introduction of application

 

23 March 1981           Registration of application

 

 

Examination of admissibility

 

20 September 1982       Rapporteur's request for information

                        from applicants

 

11 October and          Submission of information by applicants

30 November 1982

 

15 March 1984           Commission's decision to give notice of

                        the application to the respondent Government

                        and to invite them to submit written

                        observations on admissibility and merits

 

21 September 1984       Submission of Government's observations

 

18 February 1985        Submission of applicants' observations

                        in reply

 

13 May 1985             Commission's deliberations and decision to

                        deal separately with the applicants and

                        adjourn consideration of MM. Powell and

                        Rayner's circumstances

 

16 October 1985         Commission's hearing on admissibility and

                        merits in the case of the third applicant,

                        Mr.  Baggs.  Decision to declare his case

                        partially admissible

 

17 October 1985         Commission's decision to declare Mr.  Powell's

                        case partially admissible and to invite the

                        parties to provide further information about

                        Mr.  Rayner's case

 

27 November 1985,       Submission by the Government of information

29 January 1986         and further observations in Mr.  Rayner's

and 2 July 1986         case

 

9 December 1985,        Submission of Mr.  Rayner's comments in reply

7 January 1986,

22 and 24 April 1986

 

16 July 1986            Commission's decision to declare Mr.  Rayner's

                        case partially admissible

APPENDIX I

 

 

Date                    Item

 

----------------------------------------------------------------

 

 

Examination of the merits

 

29 July 1986            Submission by Government of further

                        observations in Mr.  Powell's case

 

1 September 1986        Submission by MM. Powell and Rayner of

and 9 March 1987        comments in reply

 

8 July 1987             Commission's adoption of friendly settlement,

                        Article 30 Report, in Mr.  Baggs' case

 

10 October 1987         Commission's deliberations and decision to

                        adjourn MM. Powell and Rayner's case pending

                        the Court's judgment in Boyle and Rice v.

                        the United Kingdom

 

27 April 1988           Court's judgment in the Boyle and Rice

                        case

 

18 May 1988             Applicants invited by the Secretary to the

                        Commission to submit comments on their case

                        in relation to this judgment

 

17 August and           Submission of applicants' comments on the

28 October 1988         Boyle and Rice judgment

 

4 October 1988          Submission by Government of their comments

                        on this judgment

 

18 January 1989         Commission's deliberations on the merits

                        and final votes

 

19 January 1989         Adoption of text of present Report

 

 

 

APPENDIX II

 

 

 

 

 

 

DECISION OF THE COMMISSION

 

 

AS TO THE ADMISSIBILITY OF

 

 

 

Application N° 9310/81

by Richard John POWELL

against the United Kingdom

 

 

        The European Commission of Human Rights sitting in private on

16 October 1985, the following members being present:

 

                 MM   J.A. FROWEIN, Acting President

                      E. BUSUTTIL

                      G. JÖRUNDSSON

                      G. TENEKIDES

                      B. KIERNAN

                      J.A. CARRILLO

                      A. WEITZEL

                      J.C. SOYER

                      H.G. SCHERMERS

                      H. DANELIUS

                      G. BATLINER

                      J. CAMPINOS

                      H. VANDENBERGHE

                  Sir Basil HALL

 

                  Mr J. RAYMOND, Deputy Secretary to the Commission

 

 

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

 

        Having regard to the application introduced on 31 December

1980 by the Federation of Heathrow Anti-Noise Groups (FHANG), and

later continued by the individual applicants 1.  Michal Anthony Rayner,

2.  Richard John Powell, 3 Frederick William Baggs, against the United

Kingdom and registered on 23 March 1981 under file N° 9310/91;

 

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;  and

 

- the Commission's decision of 15 March 1984 to bring the

  application of the three individual applicants to the notice of

  the respondent Government and invite them to submit written

  observations on its admissibility and merits;

 

- the decision of the same day rejecting the application in so far

  as it was lodged by the Federation of Heathrow Anti-Noise Groups;

 

- the observations submitted by the respondent Government on

  21 September 1984 and the observations in reply submitted by the

  applicants on 18 February 1985;

 

- the decision of 13 May 1985 to disjoin the individual applications

  and to hold an oral hearing in the case of Mr Baggs;

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The applicant, Richard John Powell, of British nationality,

born in 1928, director of a mining concern, is represented by the

Federation of Heathrow Anti-Noise Groups (FHANG) of which he is a

committee member, and by Mr N.C. Walsh of Messrs Blaker, Son and

Young, Solicitors in Lewes.

 

        His application concerns noise nuisance related to Heathrow

Airport.

 

 

A.      The applicant's situation

 

        The applicant lives with his family at Balblain, 36 Meadway,

Esher, Surrey.  He bought his house in 1957.  As it was in a quiet and

pleasant area surrounded by woodland and common land providing

extensive possibilities for outdoor activities there was a high

premium on housing property.  The property is several miles from

Heathrow Airport and just within the 35 NNI* contour.

 

        In 1972 the area became subject to a flight departure route

from Heathrow.  The route is in operation only about one third of the

year, during periods of easterly winds of a velocity of five knots or

more, which allegedly occurs usually during periods of fine weather in

the summer months.  Following objections the route was divided into

two sections.

 

 

B.      The development and importance of Heathrow Airport

 

        The airport was transferred by the Air Ministry to the Civil

Aviation Authorities on 1 January 1946.  In May 1952 the first jet

only airline service was inaugurated by BOAC.

 

 

____________

 

*NNI =  Noise and Number Index, involving a combination of the number

        of aircraft heard above a certain noise level, and the average

        noise of aircraft to yield a single value.  It appears that in

        the United Kingdom the officially advisd Criteria for Control

        of Development in areas affected by aircraft noise, expressed

        in NNI values are for dwellings:

 

        60 NNI + above - refuse

 

        40 - 50 NNI    - no major new developments

 

                         infilling only with appropriate sound

                         insulation

 

        35 - 39 NNI    - Permission not to be refused on noise grounds

                         alone

 

 

        Three terminals were built and opened in 1955, 1961 and 1968.

A fourth Terminal was scheduled for completion in 1985.  Construction

of a fifth Terminal or a third London Airport at Stansted is under

consideration.

 

        The amount of passengers handled by the airport increased

steadily.  In 1956 the airport handled three million passengers.  In

July 1963 the airport handled over one million passengers during one

month.  In 1973 the airport handled 22.4 million passengers on

international routes and 4.4 million passengers on domestic routes.

There was a resulting increase in aircraft movement.  For the six

months from June 1946 until December 1946 the movements were 2,046.  In

1960 the movements were 146,501.  In the twelve months preceding 29

February 1980 the movements were 303,110.  It is currently used by over

70 airlines and serves over 200 destinations worldwide.

 

        There are, as appears from statistics which are submitted by

the applicant and not contested by the respondent Government, between

700 and 900 air movements at the airport depending upon the type of

day.  Since 1970 Concorde is in service, but the total number of

Concorde movements is very small, amounting to 1% of all movements at

Heathrow.

 

        Since 1978 a helicopter link between Heathrow and Gatwick is

in existence, with about twenty flights per day.

 

        Heathrow is the United Kingdom's leading port in the value of

visible trade and in 1983 handled cargo valued at £16.6 billion.  It

plays a major part in earning for the United Kingdom the £4 billion

per annum which is spent by overseas visitors to the United Kingdom.

Over 20% of passengers use the airport as an interchange point.  At a

conservative estimate the airport contributes a net £200 million to

the United Kingdom's balance of payments and provides direct

employment for some 45,000 people.  The number of people employed

locally in servicing the industry is substantial.  Heathrow is also a

major contributor to the local government economy, paying

approximately £9 million in local rates and rents in the year

1982/83.

 

 

C.      Noise abatement measures

 

        Various measures have been taken to control the noise nuisance

connected with the running of an airport.

 

        (a) Noise certification

 

        Through international co-operation successive United Kingdom

Governments seek to make aircraft inherently quieter.  The main forum

for this activity is the International Civil Aviation Organisation

(ICAO), originally through its Committee on Aircraft Noise (CAN) and

now through its Committee on Aviation Environmental Protection (CAEP).

A series of standards has been developed leading to the phasing out of

aircraft unable to meet them.  In the United Kingdom effect is given

to the standards by means of an Air Navigation (Noise Certification)

Order.  In May 1979 new standards were developed to which the United

Kingdom gave effect by way of the present 1984 Order.  It includes,

inter alia:

 

- changes to the requirement for subsonic jet aeroplanes;

 

- requirements for future production of existing types of supersonic

  transports and their derived versions.

 

 

        (b)  Restrictions on night jet movements

 

        Specific steps have been taken by the United Kingdom

Government since 1971 to reduce progressively the number of night

movements and thereby achieve a reduction of night noise disturbance

at Heathrow.

 

        In 1978 the Government decided that all flights by noisier

aircraft would be phased out over a period of ten years.  This was to

be achieved by the creation of two quotas, one for noisier aircraft

movements and the other for quieter aircraft movements.  It was

decided that the former would be run down to zero over a ten year

period by equal annual cuts and that the quotas for quieter aircraft

movements would be increased at the same rate.

 

        Whether an aircraft qualifies for the quieter quota is

determined by its noise performance as measured by the area within the

95 PNdB contour.  According to the respondent Government, 95 PNdB is

the noise level below which, on the evidence currently available, the

average person sleeping in an insulated room is unlikely to be

awakened.  The specified criteria (4 square miles on take-off, 2.5

square miles on landing) correspond broadly to the performance of the

quieter, modern jet aircraft such as the A 300 B Airbus and the L1011

TriStar.  No night flights by the noisier types of aircraft will be

permitted from 1 April 1987.

 

 

        (c)  Noise monitoring

 

        Monitoring of aircraft noise on take-off was first carried out

in the early 1960's.  Since July 1974 the British Airport Authority

(BAA) have carried out monitoring on behalf of the Government using

automatic equiment.  This equipment consists of 13 Noise Monitoring

Terminals ("NMT") linked to a central processing and control unit.

The system is self-checking to ensure the validity of any noise

reading in excess of the noise limit for the period.

 

        The distribution of NMTs ensure that all departing jet

aircraft pass over or close to a monitoring point and the NMTs

accordingly provide a reliable check of the maximum noise levels

produced by all aircraft.

 

        The noise level of a jet aircraft taking-off must not exceed

the statutory limits of 110 PNdB by day (07.00-23.00 hours local time)

or 102 PNdB by night (23.00-07.00 hours local time) at the nearest

monitor after take-off.

 

        In the event of an infringement of the noise limit the British

Airports Authority inform the airline by letter and send a copy to the

Department of Transport.  It is the responsibility of the airline

operators to ensure that their aircraft are operated in such a manner

that the statutory limits are met.  To achieve this they may have to

pay special attention to take-off procedures and/or adjust take-off

weight to suit a particular departure route.

 

 

        (d)  Minimum noise routes

 

        Such routes are designed to avoid as far as possible the major

built up areas and thus to overfly the smallest number of people

consistent with the requirements of safety and air traffic management.

 

 

        (e)  Other operational measures

 

        In addition to the above principal measures other important

measures are in force aimed at reducing noise levels, such as special

approach procedures, minimum height requirements on take-off and

approach to land, runway alternation, limitation on air transport

movements, prior approval to operate, noise related landing charges.

 

 

        (f)  Noise insulation grant scheme

 

        The first scheme for the sound insulation of dwellings was

introduced for Heathrow in April 1966.  There were further schemes in

1972 and 1975, the latter being improved in 1977 by increasing the

financial limits.  The present scheme came into operation on

1 April 1980 by means of Statutory Instrument 1980 N° 153.

 

        A number of separate considerations entered into the

formulation of the present scheme.  In determining the area to be

covered, the Government considered that account should be taken of the

noise levels that people would be experiencing in the coming years,

since the progressive introduction into service of quieter aircraft

was expected to bring about a gradual reduction of noise levels around

Heathrow (and indeed around all other aiports).  The scheme therefore

concentrated on those areas that would still be experiencing

comparatively high noise levels in the mid-1980's.  The scheme also

concentrated on those areas where there is the greatest degree of

disturbance due to aircraft noise at night.  Within this area, the

amount of grant provided was intended to cover 100% of the reasonable

costs incurred.

 

        Under the present scheme, the boundary is based on the

forecast 50 NNI contour for 1985, and the composite of the 95 PNdB

noise footprint for quieter aircraft.  The 35NNI is generally

considered to indicate a low annoyance rating and 55 NNI a high

annoyance rating.

 

D.      The legal situation

 

        (a)  Remedies

 

        No specific remedies exist for individuals who might be

affected by aircraft noise in the vicinity of airports.  Section 76 of

the Civil Aviation Act 1982 (formerly section 40 of the Civil Aviation

Act 1949) provides as follows:

 

        "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 or of any Orders under section 62 above have been duly

        complied with and there has been no breach of section 81

        below."

 

Section 76 (2) of the 1982 Act (hereafter referred to as the CAA) goes

on to provide for strict liability (ie liability without proof of

negligence or intention) where material loss or damage to any person

or property on land or water by (inter alia) an aircraft in flight or

an object falling from an aircraft.

 

        The provisions of section 76 are comparable to those in the

Rome Convention on Damage Caused by Foreign Aircraft to Third Parties

on the Surface 1952 ("Rome Convention").

 

        The Noise Abatement Act 1960 specifically exempts aircraft

noise from its operations.

 

        (b)  Compensation for noise nuisance or purchase of affected

             property

 

        Compensation for loss of value of houses and land from airport

noise is provided for by the Land Compensation Act 1973.  To qualify

for compensation an applicant has to show that there is immunity on

the part of the airport from actions for nuisance.  Such immunity

arises by virtue of section 77 (2) of the Civil Aviation Act 1982 and

immunity extends to operations at Heathrow.

 

        The new rights to compensation were tied to new or altered

public works first brought into use after 16 October 1969.  For

reasons of principle and practice, intensification of an existing use,

ie from works, which had been first brought into use before the

relevant date for the purposes of the 1973 Act, was not subject to

compensation.

 

        The BAA being a public statutory authority does not have power

to acquire property near an airport unless it could show that the

acquisition of the property was necessary for the proper performance

of its function.

 

COMPLAINTS

 

        The applicant complains of the noise and/or vibration caused

by and in connection with the operation of and at Heathrow Airport.

He submits that aircraft routes have diminished the amenity premium on

houses in his area.  He points out that gardens and outdoor recreation

areas cannot be insulated from noise.  It was this factor which gave

rise to frustration and annoyance and was responsible for nervous

tension.

 

        He also complains that British law, unlike that of other High

Contracting States, excludes civil remedies for nuisance irrespective

of the degree of loss or damage sustained.  He invokes Articles 6 (1),

8 (1) and 13 of the Convention and Article 1 of Protocol N° 1.

 

 

PROCEEDINGS BEFORE THE COMMISSION

 

        The application was first registered on behalf of the

Federation of Heathrow Anti-Noise Groups (FHANG) only, as initially no

details about the situation of individual applicants were submitted.

 

        Statements concerning Mr Powell, as an individual applicant,

were submitted by FHANG on 11 October 1982.

 

        On 15 March 1984 the Commission rejected FHANG's complaint and

communicated the complaints of three individual applicants, including

Mr Powell's, to the respondent Government for observations on their

admissibility and merits.  The observations were submitted on

21 September 1984 and the applicants' reply on 18 February 1985.  On

13 May 1985 the Commission decided to deal separately with the three

applications and to hold an oral hearing in the case of Mr Baggs.

 

 

SUMMARY OF THE PARTIES' SUBMISSIONS

 

A.      The respondent Government

 

        1.  On the facts

 

        The respondent Government allege that about half a million

people live in the area within the 35 NNI contour being at a low level

of noise annoyance.  They point out that Mr Powell has not alleged to

have taken any steps to dispose of his house or to move out of the

area within the 35 NNI contour;  nor was it alleged that the noise

climate had made the property unsaleable or difficult to sell at a

realistic price.  Furthermore there was no evidence that the proximity

of the property at Heathrow Airport has had any adverse impact on its

value, properties in Esher being much sought after and maintaining

high market value.

 

        Admitting that jet aircraft are and will remain a source of

noise nuisance the respondent Government stress the major improvements

which have been brought about by the certification requirements and

other noise statement measures in reducing the noise level and in

phasing out noisier aircraft.

 

 

        2.  On the merits

 

        (a)  As to Article 8

 

        In the submission of the Government, while the scope of

Article 8 is wide, the Article could not on its proper construction be

extended to provide guarantees against any act which directly or

indirectly affects a person's comfort or enjoyment of his private or

home life.  Still less could the Article be interpreted as requiring a

State to take positive steps to prevent or control the activities of

non-Governmental bodies or private individuals which incidentally

have, or may have, this effect.

 

        Even if, contrary to the Government's contention,

unintentional disturbance to the comfort of home and family life was

properly to be regarded as falling within the scope of the protection

afforded by Article 8, it was clear that not all such disturbance

could give rise to an issue under the Article.  The right guaranteed

by Article 8 was a right to respect:  the obligation of respect

imposed on the State by the Article could not in any event be

interpreted as requiring the State to take all possible measures,

irrespective of the requirement of the public interest, so as to

prevent or control activities which might detrimentally affect the

quality of an individual's home or family life.  Where, as in the

present case, complaint was made of failure by the State to secure the

right to respect by preventing or controlling the detrimental effect

of noise nuisance, the Convention required the striking of a balance

between the competing demands or interests of the individual and of

society as a whole.

 

        In striking this balance, it was necessary to have regard in

any given case not merly to the nature and scope of the measures taken

to prevent or control the interference of which complaint is made but

also to the severity of the particular interference itself.

 

        Even if aircraft noise could give rise to an issue under

Article 8 of the Convention, there had on the facts of the present

case been no failure on the part of the Government to accord or secure

the right of the present applicant to respect for his private or

family life or his home, in view of

 

- the steps taken by the Government to strike a balance between the

  public interest in the safe and efficient operation of a major

  international airport and the private interests of those living in

  the immediate vicinity of the airport;

 

- the situation of the applicant Powell which was not comparable in

  severity to that of the applicant in the Arrondelle case;

 

- the extent to which it is open to the individual concerned to

  escape from the noise nuisance.

 

        If, contrary to the primary contention, noise disturbance from

aircraft using Heathrow Airport could give rise to any relevant

interference with the rights of the applicant under Article 8, such

interference was justified under paragraph 2 of the Article.

 

        Noise disturbance from aircraft on landing and taking off from

an airport was an inevitable consequence of the operation of an

airport.  The operation of Heathrow Airport, and the noise which

inevitably accompanied the provision of the airport facilities at

Heathrow, were plainly "in accordance with the law" for the purposes

of Article 8 (2):  the Airport was at all stages constructed and

developed in accordance with the relevant planning requirements and

its operation is carried on by the BAA pursuant to statutory powers

converred by the Airports Authority Act 1975.  The operating

(including the noise levels) of aircraft using the Airport was

similarly strictly governed by legislative provisions and was likewise

"in accordance with the law" for the purposes of Article 8 (2) of the

Convention.

 

        In so far as the noise disturbance from aircraft constituted a

relevant interference with the rights of the present applicant at all,

it was an interference which was necessary in a democratic society in

the interests of the economic well-being of the United Kingdom and for

the protection of the rights and freedoms of others.  The provision of

rapid means of travel and communication was of vital importance to the

economic well-being of a modern democratic society and an essential

element in this was the availability of adequate airport facilities

close to the main commercial and industrial cities of the country.

The economic importance of the two main London Airports had been

established and confirmed by a series of studies and reports relating

to airport development and strategy.

 

        Not only was Heathrow the United Kingdom's leading port in the

value of visible trade but the Airport played a central role in the

very substantial "invisible" earnings from overseas visitors to the

United Kingdom;  in addition, the Airport provided direct and indirect

employment for many thousands of people as well as contributing

substantially to the local economy through rates and rents.

 

        In providing such airport facilities, with the consequent

detrimental effects on the environment, the Government had not

exceeded any relevant principle of proportionality, in that all

reasonable and practicable measures had been and were being taken to

reduce, and to minimise the effects of, aircraft noise.

 

        (b)  As to Article 1 of Protocol N° 1

 

        This provision was not concerned with peacefulness in its

literal sense, but with unjustified or arbitrary interference with a

person's title to, or right to possess, use or otherwise deal with,

his own property, whether movable or immovable.  The concept of

peaceful enjoyment of possessions in Article 1 could not on its true

construction, be extended to provide guarantees against noise or other

environmental disturbance which, while affecting the comfort or

quality of life of an individual, has no effect on his title to, or

right to own, use or otherwise deal with, his property.  In this

regard, the Government again emphasised that there was no evidence to

suggest that the detrimental effect of the aircraft noise was such as

to render the applicant's property unsaleable or incapable of being

sold at a realistic market price having regard to the price originally

paid for the property.

 

        If, contrary to the primary contention, the applicant's

exposure to aircraft noise could and did constitute an interference

with his right to peaceful enjoyment of his property for the purposes

of the first sentence of Article 1, it did not follow that such

interference gave rise to a violation of the Article.

 

        Having regard to the particular circumstances of the

applicant and to the extensive measures taken by the Government to

reduce or control, and to abate the effect of, aircraft noise in the

vicinity of Heathrow Airport, the facts of the present application did

not disclose that the fair balance was upset between the protection of

the applicant's right of property and the requirements of the general

interest.

 

        Even if exposure of an individual to aircraft noise could

constitute an interference with the applicant's right to peaceful

enjoyment of his possessions such interference did not amount to a

violation.  Here again the notion of balance came into play and it

would be wrong to conclude that in all cases of an interference the

provision of compensation was a necessary ingredient of a fair balance

between public and private rights.  A right to compensation could only

form a necessary ingredient in a fair balance if there was evidence

that the noise had rendered the property unsaleable or incapable of

being sold at a realistic price.

 

        (c)  As to Article 6 (1) of the Convention

 

        Section 76 of the Civil Aviation Act 1982 was not arbitrary or

unreasonable.  It did not restrict the applicant's right of access to

a court in respect of nuisance from aircraft noise so as to constitute

a denial of such right in breach of Article 6 (1).  The section was

only applicable in so far as an aircraft was flying at a height above

the ground which is reasonable in all the circumstances of the case

and in so far as there has been  no breach of any Air Navigation Order

including orders relating to the noise certification of aircraft.

Whether section 76 did afford a defence or not in any individual case,

was a matter for the domestic courts to determine.  There existed no

procedural or substantive bars which would prevent a plaintiff from

invoking the jurisdiction of the court to test this matter.

 

        As in the case of section 141 of the Mental Health Act, the

effect of section 76 was in any event much more limited than might at

first sight appear.  For an actionable private nuisance to arise at

common law, it was necessary to do more than merely show an

interference with the plaintiff's use and enjoyment of his land.  A

plaintiff had additionally to establish that the interference was

unreasonable.  What is reasonable depended on all the circumstances of

the case, including such matters as the location of the land in

question and the nature and manner of performance of the activity

causing the nuisance.

 

        Thus even apart from section 76, the prospect of an owner of

property near to an airport successfully establishing a case in noise

nuisance against an airline operator in the absence of evidence that

the operator flew unreasonably low, or in breach of the relevant

statutory regulations, was very remote.  The limitations on the

liability of airline operators imposed by the operation of section 76

CAA, did not, therefore, impair the essence of the applicant's right

to a court or transgress the principle of proportionality in breach of

Article 6 (1) of the Convention.

 

 

        (d)  As to Article 13 of the Convention

 

        The primary contention is that the applicant's claims do not

fall within the scope of the Convention and that accordingly Article

13 is inapplicable.

 

        If, however, Article 13 was applicable its requirements were

satisfied.  It was true that the remedies available to the applicant

to complain about and to seek redress for the general noise climate,

which he experiences on his property, were very limited.  In so far as

he was able to show that a particular airline operator had flown at a

height that was unreasonable in all the circumstances, or had flown in

breach of the provisions of any air navigation order, he would of

course have his normal remedy against the airline operator in court

proceedings based in nuisance and/or in trespass.  The remedy might

take the form of an action for damages or, in the event of repeated

infringements, an injunction to restrain the operator from continuing

to fly in such a manner.  And the applicant would be entitled to test

in court whether the airline operator in question did fly unreasonably

low or in breach of any relevant Air Navigation Order.

 

        In addition, in the event that the applicant were able to show

that the Secretary of State had failed to enforce the statutory

requirements imposed by him under the Civil Aviation Act to reduce and

control aircraft noise, he would probably also have the remedy by way

of mandamus to compel the Secretary of State to ensure compliance with

the statutory requirements.

 

        Apart from these limited categories of cases, the applicant

would, at present, have no remedy whereby he could complain about

noise nuisance and obtain redress, there being no relevant

development, in his case, which would enable him to claim compensation

under the Land Compensation Act 1973.

 

        In this context it is pointed out that the approach in the

United Kingdom - in common with a number of States in Europe and

elsewhere - to the problems of aircraft noise has in general been to

endeavour to reduce and control the noise and to mitigate its effect,

rather than to provide concrete remedies.  It is sought to achieve

this end by a succession of measures which have had, and it is hoped

will continue to have, the desired effect of generally improving the

noise climate around airports, noise certification, night

restrictions, minimum noise routes, noise-related charges and

substantial noise insulation grants.

 

        While it is accepted that certain States have gone further and

have already introduced some system of compulsory acquisition of

noise-affected property, it is clear from a survey of measures dealing

with noise problems at airports, which was prepared by the

International Civil Aviation Organisation (ICAO) that such a system is

by no means universal, either in Europe or elsewhere.

 

        Notwithstanding the absence of such a measure, the admittedly

limited remedies available to the applicant, combined with the

extensive measures in force in the United Kingdom to control and abate

noise nuisance and to mitigate its effect, did satisfy the

requirements of Article 13 of the Convention, in so far as that

Article was applicable.

 

 

B.      The applicant

 

        (a)  As to Article 8 of the Convention and

             Article 1 of Protocol N° 1

 

52.     The disturbance complained of is, according to the applicant,

intentional because it arises as the direct result of a decision made

by the respondent Government with full knowledge of the injurious

effects on him and others in identical circumstances.  He considers

that the interference cannot be justified on economic grounds because

more efficient noise abatement measures would only involve limited

increase in public expenditure.  The alleged interference was also

disproportionate to the legitimate aim pursued.

 

 

        (b)  As to Articles 6 (1) and 13 of the Convention

 

        The statutory remedies referred to by the Government are, in

the applicant's submission, illusory and had no practical relevance in

his particular circumstances.  Section 76 CAA, whether it was regarded

as a bar to jurisdiction or as a limit of a cause of action, had the

effect of depriving him of a determination of his case on the merits.

Therefore the very essence of the right to a court, as guaranteed by

Article 6 (1), was impaired.  As he had no effective remedy to

complain about noise nuisance, Article 13 was likewise violated.

 

THE LAW

 

1.      The applicant complains of noise and vibration nuisance caused

by air traffic at Heathrow Airport.  In addition he complains that

section 76 Civil Aviation Act 1982 (CAA) prevents him from raising his

complaint before a national court.

 

2.      The Commission has already held in the Arrondelle case (Dec N°

7889/77, 15.7.80, DR 19, p 186) that the United Kingdom is answerable

under the Convention with regard to a complaint on aircraft noise in

the vicinity of British airports because it is a State body, namely

the British Aviation Authority (BAA) which is responsible for the

planning and construction fo civil airports.  In addition air traffic

is regulated by legislation, the Civil Aviation Act (CAA) 1982.

 

3.      The applicant complains of a continuing situation with regard

to which, uncontestably, no specific remedy exists under British law.

The applicant can, in these circumstances, be considered to have

complied with the condition of Article 26 of the Convention.

 

4.      The applicant first invoked Article 8 of the Convention.  He

submits that the noise nuisance complained of constitutes an

interference with the right to respect of their private life and of

their home.  The Commission considers that Article 8 (1) of the

Convention which guarantees this right cannot be narrowly interpreted

such as to apply only with regard to direct measures taken by the

authorities against the privacy and/or home of an individual.  It may

also cover indirect intrusions which are unavoidable consequences of

measures not at all directed against private individuals.  In this

context it has to be noted that a State not only has to respect but

also to protect the rights guaranteed by Article 8 (1) (see Eur Court

HR, Marckx Case, judgment of 13.6.79, Series A, Vol 31, para 31).

Considerable noise nuisance can undoubtedly affect the physical

well-being of a person and thus interfere with his private life.  It

may also deprive a person of the possibility of enjoying the amenities

of his home.  In the present case it is not necessary to determine as

to what level of intensity noise becomes an interference with the

rights guaranteed by Article 8 (1).

 

        Even assuming that the applicant can invoke Article 8 (1), the

interference complained of is in the circumstances of the present

cases, justified under paragraph 2 of this Article.

 

        It is not in question that the construction of Heathrow Airport

has a legal basis.  Furthermore, it cannot be doubted that the running

of an airport and the increasing use of jet aircraft is in the

interest of the economic well-being of a country and is also necessary

in a democratic society.  It furthers an important branch of industry

which is concerned with the construction of aircraft, it helps to

develop external and internal trade by providing speedy means of

transportation and it is also an important factor for the development

of tourism.

 

        The assumed interference with the applicant's right under

Article 8 (1) is also proportionate to the legitimate aim connected

with the running of the airport.  It is true that where a State is

allowed to restrict rights or freedoms guaranteed by the Convention,

the principle of proportionality may oblige it to make sure that such

restrictions do not create an unreasonable burden for the individual

concerned.

 

5.      The Commission notes in this context that the United Kingdom

authorities have, according to the applicant's own submissions, taken

various measures to control and limit the noise nuisance connected

with the running of Heathrow Airport.

 

        As far as the particular situation of the applicant Powell is

concerned, the flight departure route causing disturbance in his area

is in operation only about one third of the year and it was divided

into two sections in consequence of the objections raised by the

population concerned.  Mr Powell's property lies just within the 35

NNI contour which is, according to the uncontested submissions of the

respondent Government, an area of low noise annoyance.  The Commission

cannot, in these circumstances, find that the assumed interference

with the applicant Powell's right to respect for private life and for

his home is disproportionate to the legitimate aim connected with the

running of the airport.

 

6.      The applicant has further invoked Article 1 of Protocol N° 1

which guarantees the right to the peaceful enjoyment of possessions.

However, this provision is mainly concerned with the arbitrary

confiscation of property and does not, in principle, guarantee a right

to the peaceful enjoyment of possession in a pleasant environment.  It

is true that aircraft noise nuisance of considerable importance both

as to level and frequency may seriously affect the value of real

property or even render it unsaleable and thus amount to a partial

taking of property.  However, the applicant Powell is living, like

about half a million other people, in an area which is not, as was

already stated above, subjected to an extreme noise annoyance and

there is nothing to show that the value of his property was

substantially diminished on the ground of aircraft noise such as to

constitute a disproportionate burden amounting to a partial taking of

property necessitating payment of compensation.

 

        An examination by the Commission of this complaint does not

therefore disclose any appearance of a violation of Article 1 of

Protocol N° 1.

 

        It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 (2) of the

Convention.

 

7.     The applicant has also alleged a violation of Article 6 on the

ground that the Civil Aviation Act 1982 excludes a right of action

against trespass and nuisance by reason of the flight of an aircraft

over property and a right of action against nuisance by reason of the

noise or irritation caused by an aircraft or an aerodrome.

 

        The respondent Government consider that section 76 CAA does

not impair the very essence of a right to a court.

 

        It is true that, according to the jurisprudence of the

European Court of Human Rights, any civil claim must be able to be

submitted to a court (see Golder case, judgment of 21.2.75, para 35).

However Article 6 (1) does not impose requirements in respect of the

nature and scope of the relevant national law governing the "right" in

question.  Nor does the Commission consider that it is, in principle,

competent to determine or review the substantive content of the civil

law which ought to obtain in the State Party any more than it could in

respect of substantive criminal law.  As it has stated in the

Sporrong and Lönnroth case:

 

        "Whether a right is at all at issue in a particular case

        depends primarily on the legal system of the State concerned.

        It is true that the concept of a 'right' is itself autonomous

        to some degree.  Thus it is not decisive for the purposes of

        Article 6 (1) that a given privilege or interest which exists

        in a domestic legal system is not classified or described as

        a 'right' by that system.  However, it is clear that the

        Convention organs could not create by way of interpretation

        of Article 6 (1) a substantive right which has no legal basis

        whatsoever in the State concerned."  (Comm Report 8.10.80,

        para 150;  see also Dec N° 8282/78, 14.7.80, DR 21, p 109;

        Kaplan v the United Kingdom, Comm Report 17.7.80, DR 21,

        para 134.)

 

        Contrary to the cases so far considered by the Commission (see

Dec N° 7443/76, 10.12.76, DR 8, para 216;  N° 10096/82 and 10475/83,

both of 9.10.84) and the European Court of Human Rights (see

Ashingdane case, judgment of 28.5.85, Series A, Vol 93) the provision

in section 76 CAA does not confer an immunity from liability in

respect of actions of certain and distinct groups of persons (such as

soldiers or mental health patients as in the cases cited) but excludes

generally any action in respect of trespass or nuisance caused by

the flight of an aircraft at a reasonable height.  The Commission

considers that the purpose and effect of section 76 CAA is to exclude

generally any possible compensation claims for trespass and nuisance

and not just to limit jurisdiction of civil courts with regard to

certain classes of civil action.  The applicant, therefore, cannot

invoke under English law a substantive right to compensation for the

alleged noise nuisance.  The mere fact that consequently an action in

respect of aircraft noise nuisance would be devoid of all prospects of

success is not equivalent to depriving the applicant of the right of

access to a court.

 

        It follows that this particular complaint does not disclose

any appearance of a violation of the rights and freedoms set out in

the Convention and in particular in Article 6 (1).

 

        The application is to this extent again manifestly

ill-founded within the meaning of Article 27 (2) of the Convention.

 

8.      On the other hand the Commission considers that the

applicant's complaint of being deprived, as regards aircraft noise

nuisance, of any effective remedy before a national authority raises

important issues of law and fact under Article 13 of the Convention

which are of such complexity that their determination must depend upon

an examination on the merits.

 

        For these reasons, the Commission

 

        DECLARES ADMISSIBLE, without prejudging the merits of the

        case, the applicant's complaint that as regards aircraft

        noise he has no effective remedy before a national

        authority within the meaning of Article 13 of the Convention;

 

        DECLARES INADMISSIBLE the remainder of the application.

 

 

 

Deputy Secretary to the Commission     Acting President of the Commission

 

 

 

 

 

         (J. RAYMOND)                            (J.A. FROWEIN)

 

 

 

APPENDIX III

 

 

 

 

 

 

DECISION OF THE COMMISSION

 

 

AS TO THE ADMISSIBILITY OF

 

 

Application No. 9310/81

by Michael Anthony RAYNER

against the United Kingdom

 

 

        The European Commission of Human Rights sitting in private on

16 July 1986 , the following members being present:

 

                    MM. J.A. FROWEIN, Acting President

                        F. ERMACORA

                        E. BUSUTTIL

                        G. TENEKIDES

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

 

                   Mr.  H.C. KRÜGER, Secretary to the Commission

 

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

 

        Having regard to the application introduced on 31 December

1980 by the Federation of Heathrow Anti-Noise Groups (FHANG), and

later continued by the individual applicants 1.  Michael Anthony

RAYNER, 2.  Richard John POWELL, 3.  Frederick William BAGGS, against

the United Kingdom and registered on 23 March 1981 under file No.

9310/81;

 

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission; and

 

-       the Commission's decision of 15 March 1984 to bring the

        application of the three individual applicants to the notice of

        the respondent Government and invite them to submit written

        observations on its admissibility and merits;

 

-       the partial decision of the same day rejecting the application

        in so far as it was lodged by the Federation of Heathrow

        Anti-Noise Groups;

 

-       the observations submitted by the respondent Government on

        21 September 1984 and the observations in reply submitted by

        the applicants on 18 February 1985;

 

-       the decision of 13 May 1985 to disjoin the individual

        applications and to hold an oral hearing in the case of

        Mr Baggs;

 

-       the supplementary submissions of the present applicant dated

        9 December 1985, 22 and 24 April 1986;

 

-       the supplementary submissions of the respondent Government of

        27 November 1985 and 29 January 1986;

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The applicant, Michael Anthony Rayner, of British nationality,

is a partner with other members of his family in a long-established

farming business engaged in various enterprises and involving the

ownership of agricultural land and residential property for the use of

employees.  He is represented by the Federation of Heathrow Anti-Noise

Groups (FHANG) and by Mr N.C. Walsh of Messrs Blaker, Son and Young,

Solicitors in Lewes.

 

        His application concerns noise nuisance related to Heathrow

Airport.

 

 

A.      The applicant's situation

 

        The applicant lives with his family at 3 Riverside Bungalows,

Poyle Park, Colnbrook.  His home was acquired by his family in 1952,

at that time being occupied by a tenant.  The applicant took up

residence at the address indicated in 1961.  Prior to that he lived in

the village of Horton.  Most of the property owned or occupied by the

business of the applicant's family is within a one mile radius of the

applicant's home.  The home is situated about one and a third miles

west of and in a direct line with Heathrow's northern runway.

 

        It is regularly overflown during the daytime and to a limited

extent at nighttime and falls within a 60 NNI contour*.  The village

of Horton, where the applicant lived until 1961, is situated,

according to a map submitted by the applicant, within a 55 NNI

contour.

 

 

 

____________

 

*NNI =  Noise and Number Index, involving a combination of the number

        of aircraft heard above a certain noise level, and the average

        noise of aircraft to yield a single value.  It appears that in

        the United Kingdom the officially advised Criteria for Control

        of Development in areas affected by aircraft noise, expressed

        in NNI values, are for dwellings:

 

        60 NNI + above - refuse

 

        40 - 50 NNI    - no major new developments

 

                         infilling only with appropriate sound

                         insulation

 

        35 - 39 NNI    - Permission not to be refused on noise grounds

                         alone

 

 

        The applicant has submitted a report on aircraft noise

monitoring by the London Scientific Services Noise and Vibration Group

indicating that the average noise level at Poyle Park is 87 decibels

(dB) for landing aircraft and 86 dB for aircraft taking off.

Furthermore the report states that the percentage figure of noise

level in excess of 90 dB is 29% with regard to landing aircraft and

38% with regard to aircraft taking off.

 

        The figures on the average noise level submitted by the

respondent Government are 104-110 PndB (perceived noise decibels) for

landing aircraft and 93.2-111.3 PNdB for aircraft taking off.   This

corresponds, so the applicant points out, according to the standard

PNdB - dB conversion, to 91-97 dB and 77.8-98.3 dB

respectively.

 

 

B.      The development and importance of Heathrow Airport

 

        The airport was transferred by the Air Ministry to the Civil

Aviation Authorities on 1 January 1946.  In May 1952 the first jet

only airline service was inaugurated by BOAC.

 

        Three terminals were built and opened in 1955, 1961 and 1968.

A fourth Terminal was scheduled for completion in 1985.  Construction

of a fifth Terminal or a third London Airport at Stansted is under

consideration.

 

        The number of passengers handled by the airport increased

steadily.  In 1956 the airport handled three million passengers.  In

July 1963 the airport handled over one million passengers during one

month.  In 1973 the airport handled 22.4 million passengers on

international routes and 4.4 million passengers on domestic routes.

There was a resulting increase in aircraft movement.  For the six

months from June 1946 until December 1946 the movements were 2,046.  In

1960 the movements were 146,501.  In the twelve months preceding

29 February 1980 the movements were 303,110.  The airport is currently

used by over 70 airlines and serves over 200 destinations worldwide.

 

        There are, as appears from statistics which are submitted by

the applicant and not contested by the respondent Government, between

700 and 900 air movements at the airport depending upon the type of

day.  Since 1970 Concorde is in service, but the total number of

Concorde movements is very small, amounting to 1% of all movements at

Heathrow.

 

        Since 1978 a helicopter link between Heathrow and Gatwick is

in existence, with about twenty flights per day.

 

        Heathrow is the United Kingdom's leading port in the value of

visible trade and in 1983 handled cargo valued at £16.6 billion.  It

plays a major part in earning for the United Kingdom the £4 billion

per annum which is spent by overseas visitors to the United Kingdom.

Over 20% of passengers use the airport as an interchange point.  At a

conservative estimate the airport contributes a net £200 million to

the United Kingdom's balance of payments and provides direct

employment for some 45,000 people.  The number of people employed

locally in servicing the industry is substantial.  Heathrow is also a

major contributor to the local government economy, paying

approximately £9 million in local rates and rents in the year

1982/83.

 

C.      Noise abatement measures

 

        Various measures have been taken to control the noise nuisance

connected with the running of an airport.

 

        (a) Noise certification

 

        Through international co-operation successive United Kingdom

Governments seek to make aircraft inherently quieter.  The main forum

for this activity is the International Civil Aviation Organisation

(ICAO), originally through its Committee on Aircraft Noise (CAN) and

now through its Committee on Aviation Environmental Protection (CAEP).

A series of standards has been developed leading to the phasing out of

aircraft unable to meet them.  In the United Kingdom effect is given

to the standards by means of an Air Navigation (Noise Certification)

Order.  In May 1979 new standards were developed to which the United

Kingdom gave effect by way of the present 1984 Order.  It includes,

inter alia:

 

- changes to the requirement for subsonic jet aeroplanes;

 

- requirements for future production of existing types of supersonic

  transports and their derived versions.

 

 

        (b)  Restrictions on night jet movements

 

        Specific steps have been taken by the United Kingdom

Government since 1971 to reduce progressively the number of night

movements and thereby achieve a reduction of night noise disturbance

at Heathrow.

 

        In 1978 the Government decided that all flights by noisier

aircraft would be phased out over a period of ten years.  This was to

be achieved by the creation of two quotas, one for noisier aircraft

movements and the other for quieter aircraft movements.  It was

decided that the former would be run down to zero over a ten year

period by equal annual cuts and that the quotas for quieter aircraft

movements would be increased at the same rate.

 

        Whether an aircraft qualifies for the quieter quota is

determined by its noise performance as measured by the area within the

95 PNdB contour.  According to the respondent Government, 95 PNdB is

the noise level below which, on the evidence currently available, the

average person sleeping in an insulated room is unlikely to be

awakened.  The specified criteria (4 square miles on take-off, 2.5

square miles on landing) correspond broadly to the performance of the

quieter, modern jet aircraft such as the A 300 B Airbus and the L1011

TriStar.  No night flights by the noisier types of aircraft will be

permitted from 1 April 1987.

 

        (c)  Noise monitoring

 

        Monitoring of aircraft noise on take-off was first carried out

in the early 1960's.  Since July 1974 the British Airports Authority

(BAA) have carried out monitoring on behalf of the Government using

automatic equipment.  This equipment consists of 13 Noise Monitoring

Terminals ("NMT") linked to a central processing and control unit.

The system is self-checking to ensure the validity of any noise

reading in excess of the noise limit for the period.

 

        The distribution of NMTs ensure that all departing jet

aircraft pass over or close to a monitoring point and the NMTs

accordingly provide a reliable check of the maximum noise levels

produced by all aircraft.

 

        The noise level of a jet aircraft taking off must not exceed

the statutory limits of 110 PNdB by day (07.00-23.00 hours local time)

or 102 PNdB by night (23.00-07.00 hours local time) at the nearest

monitor after take-off.

 

        In the event of an infringement of the noise limit the British

Airports Authority inform the airline by letter and send a copy to the

Department of Transport.  It is the responsibility of the airline

operators to ensure that their aircraft are operated in such a manner

that the statutory limits are met.  To achieve this they may have to

pay special attention to take-off procedures and/or adjust take-off

weight to suit a particular departure route.

 

 

        (d)  Minimum noise routes

 

        Such routes are designed to avoid as far as possible the major

built up areas and thus to overfly the smallest number of people

consistent with the requirements of safety and air traffic management.

 

 

        (e)  Other operational measures

 

        In addition to the above principal measures other important

measures are in force aimed at reducing noise levels, such as special

approach procedures, minimum height requirements on take-off and

approach to land, runway alternation, limitation on air transport

movements, prior approval to operate, noise related landing charges.

 

 

        (f)  Noise insulation grant scheme

 

        The first scheme for the sound insulation of dwellings was

introduced for Heathrow in April 1966.  There were further schemes in

1972 and 1975, the latter being improved in 1977 by increasing the

financial limits.  The present scheme came into operation on

1 April 1980 by means of Statutory Instrument 1980 No. 153.

 

        A number of separate considerations entered into the

formulation of the present scheme.  In determining the area to be

covered, the Government considered that account should be taken of the

noise levels that people would be experiencing in the coming years,

since the progressive introduction into service of quieter aircraft

was expected to bring about a gradual reduction of noise levels around

Heathrow (and indeed around all other airports).  The scheme therefore

concentrated on those areas that would still be experiencing

comparatively high noise levels in the mid-1980's.  The scheme also

concentrated on those areas where there is the greatest degree of

disturbance due to aircraft noise at night.  Within this area, the

amount of grant provided was intended to cover 100% of the reasonable

costs incurred.

 

        Under the present scheme, the boundary is based on the

forecast 50 NNI contour for 1985, and the composite of the 95 PNdB

noise footprint for quieter aircraft.  The 35 NNI is generally

considered to indicate a low annoyance rating and 55 NNI a high

annoyance rating.   95 PNdB is the exterior noise level below which,

according to a Department of Trade Press Notice of 21 February 1978,

current evidence suggests that the average person in an insulated room

is unlikely to be awakened.  The area enclosed by these two contours

was then further extended to take account of natural boundaries, in

the majority of cases, roads.

 

        When the scheme was introduced in 1966 roof insulation was

optional within the grant level.  It was excluded from the 1980 Scheme

for all classes of dwelling, because such treatment was made

available in 1978 by the Department of the Environment's Home

Insulation Scheme.  It was felt that insulation for energy saving

purposes also provided suitable acoustic protection.

 

 

D.      The legal situation

 

        (a)  Remedies

 

        No specific remedies exist for individuals who might be

affected by aircraft noise in the vicinity of airports.  Section 76 of

the Civil Aviation Act 1982 (formerly section 40 of the Civil Aviation

Act 1949) provides as follows:

 

        "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 or of any Orders under section 62 above have been duly

        complied with and there has been no breach of section 81

        below."

 

Section 76 (2) of the 1982 Act goes on to provide for strict liability

(ie liability without proof of negligence or intention) where material

loss or damage to any person or property on land or water has been

caused by (inter alia) an aircraft in flight or an object falling from

an aircraft.

 

        The provisions of section 76 are comparable to those in the

Rome Convention on Damage Caused by Foreign Aircraft to Third Parties

on the Surface 1952 ("Rome Convention").

 

        The Noise Abatement Act 1960 specifically exempts aircraft

noise from its operations.

 

 

        (b)  Compensation for noise nuisance or purchase of affected

             property

 

        Compensation for loss of value of houses and land from airport

noise is provided for by the Land Compensation Act 1973.  To qualify

for compensation an applicant has to show that there is immunity on

the part of the airport from actions for nuisance.  Such immunity

arises by virtue of section 77 (2) of the Civil Aviation Act 1982 and

immunity extends to operations at Heathrow.

 

        The new rights to compensation were tied to new or altered

public works first brought into use after 16 October 1969.  For

reasons of principle and practice intensification of an existing use,

ie from works, which had been first brought into use before the

relevant date for the purposes of the 1973 Act, was not made

compensatable.

 

        The BAA being a public statutory authority does not have power

to acquire property near an airport unless it could show that the

acquisition of the property was necessary for the proper performance

of its function.

 

 

COMPLAINTS

 

        The applicant complains of the frequency of excessive noise

caused by landing or departing aircraft, the excessive noise levels

themselves and the lack of any adequate respite.  He also complains

that British law, unlike that of other High Contracting States,

excludes civil remedies for nuisance irrespective of the degree of

loss or damage sustained.  He invokes Articles 6 para. 1, 8 para. 1

and 13 of the Convention and Article 1 of Protocol No. 1.

 

 

PROCEEDINGS BEFORE THE COMMISSION

 

        The application was first registered on behalf of the

Federation of Heathrow Anti-Noise Groups (FHANG) only, as initially no

details about the situation of individual applicants were not

submitted.

 

        Statements concerning Mr Rayner, as an individual applicant,

were submitted by FHANG on 11 October 1982.

 

        On 15 March 1984 the Commission rejected FHANG's complaint and

communicated the complaints of three individual applicants, including

Mr Rayner, to the respondent Government for observations on their

admissibility and merits.  The observations were submitted on

21 September 1984 and the applicants' reply on 18 February 1985.  On

13 May 1985 the Commission decided to deal separately with the three

applications and to hold an oral hearing in the case of Mr Baggs.  On

16 October 1985 the Commission declared Mr Baggs' application partly

admissible in so far as it raises issues under Articles 8 and 13 of

the Convention and Article 1 of Protocol No. 1.  On 17 October 1985

Mr Powell's application was declared partly admissible in so far as a

violation of Article 13 of the Convention is alleged.

 

 

SUMMARY OF THE PARTIES' SUBMISSIONS

 

A.      The respondent Government

 

        1.  On the facts

 

        The number of people living in 1984 within the 60 NNI contour

was, according to the respondent Government, 10,000.  It is, however,

considered that in 1984 only 1,500 people around Heathrow Airport

experienced a noise exposure equal to or more than that of the

applicant.

 

        It is submitted that the northern runway is normally only used

when the southern runway is unserviceable, owing for example to

maintenance, much of which has to take place at night.  The applicant

would not therefore normally be overflown at night.  The number of

direct overflights he was likely to have experienced at the night

restriction period, i.e. from 23.30 to 06.00 hours, averaged over the

last twelve months (i.e.  November 1984 - November 1985), was two.

 

        The noise levels at night are likely to be the same as during

daytime except for the B 747 because a lower maximum noise limit is in

force at Heathrow Airport at night.  The average noise level of B 747s

at night over the applicant's property would therefore be of the order

of 103.4 PNdB (instead of 111.3 PNdB during the daytime).

 

        The average height (in feet) of arriving aircraft over the

applicant's property is 450, while departures vary according to

aircraft type:

 

        4 engined aircraft (B 747)              1,235

        3 engined aircraft (L 1011 and DC 10)   1,630

        2 engined aircraft                  2,027 - 2365.

 

The alleged heights indicated by the applicant were based on the

erroneous information that his property is approximately five

kilometres from the start of roll while the exact distance is six

kilometres.

 

        If the insulation of the applicant's home was in accordance

with the standards set up in connection with noise insulation grant

schemes then the level of insulation should be 40 dB and the noise

levels inside an insulated room should be reduced to one-sixteenth the

outside noise level.  But even if there was no sound insulation the

probability of being woken by aircraft noise was limited to once every

three nights.

 

        Finally it is pointed out that the applicant took up residence

at Colnbrook in 1961 when Heathrow was already a major international

airport, scheduled jet movements having commenced in 1958 and the

number of air movements being in excess of 150,000 per annum.  Also,

there was no evidence that the noise climate made the applicant's

property unsaleable or incapable of being sold at a realistic price.

 

 

        2.  On the merits

 

        (a)  As to Article 8 of the Convention

 

        In the submission of the Government, while the scope of

Article 8 is wide, the Article could not on its proper construction be

extended to provide guarantees against any act which directly or

indirectly affects a person's comfort or enjoyment of his private or

home life.  Still less could the Article be interpreted as requiring a

State to take positive steps to prevent or control the activities of

non-Governmental bodies or private individuals which incidentally

have, or may have, this effect.

 

        Even if, contrary to the Government's contention,

unintentional disturbance to the comfort of home and family life was

properly to be regarded as falling within the scope of the protection

afforded by Article 8, it was clear that not all such disturbance could

give rise to an issue under the Article.  The right guaranteed by

Article 8 was a right to respect:  the obligation of respect imposed on

the State by the Article could not in any event be interpreted as

requiring the State to take all possible measures, irrespective of the

requirement of the public interest, so as to prevent or control

activities which might detrimentally affect the quality of an

individual's home or family life.  Where, as in the present case,

complaint was made of failure by the State to secure the right to

respect by preventing or controlling the detrimental effect of noise

nuisance, the Convention required the striking of a balance between

the competing demands or interests of the individual and of society as

a whole.

 

        In striking this balance, it was necessary to have regard in

any given case not merely to the nature and scope of the measures taken

to prevent or control the interference of which complaint is made but

also to the severity of the particular interference itself.

 

        Even if aircraft noise could give rise to an issue under Article 8

of the Convention, there had on the facts of the present case been no

failure on the part of the Government to accord or secure the right of

the present applicant to respect for his private or family life or his

home, in view of

 

- the steps taken by the Government to strike a balance between the

  public interest in the safe and efficient operation of a major

  international airport and the private interests of those living in

  the immediate vicinity of the airport;

 

- the situation of the applicant which was not comparable in

  severity to that of the applicant in the Arrondelle case;

 

- the extent to which it is open to the individual concerned to

  escape from the noise nuisance.

 

As regards the latter point it is submitted that the present

applicant's property is neither unsaleable nor even incapable of being

sold at a realistic market price.

 

        If, contrary to the primary contention, noise disturbance from

aircraft using Heathrow Airport could give rise to any relevant

interference with the rights of the applicant under Article 8, such

interference was justified under paragraph 2 of the Article.

 

        Noise disturbance from aircraft on landing and taking off from

an airport was an inevitable consequence of the operation of an

airport.  The operation of Heathrow Airport, and the noise which

inevitably accompanied the provision of the airport facilities at

Heathrow, were plainly "in accordance with the law" for the purposes

of Article 8 para. 2:  the Airport was at all stages constructed and

developed in accordance with the relevant planning requirements and

its operation is carried on by the BAA pursuant to statutory powers

conferred by the Airports Authority Act 1975.  The operating

(including the noise levels) of aircraft using the Airport was

similarly strictly governed by legislative provisions and was likewise

"in accordance with the law" for the purposes of Article 8 para. 2 of

the Convention.

 

        In so far as the noise disturbance from aircraft constituted a

relevant interference with the rights of the present applicant at all,

it was an interference which was necessary in a democratic society in

the interests of the economic well-being of the United Kingdom and for

the protection of the rights and freedoms of others.  The provision of

rapid means of travel and communication was of vital importance to the

economic well-being of a modern democratic society and an essential

element in this was the availability of adequate airport facilities

close to the main commercial and industrial cities of the country.

The economic importance of the two main London Airports had been

established and confirmed by a series of studies and reports relating

to airport development and strategy.

 

        Not only was Heathrow the United Kingdom's leading port in the

value of visible trade but the Airport played a central role in the

very substantial "invisible" earnings from overseas visitors to the

United Kingdom;  in addition, the Airport provided direct and indirect

employment for many thousands of people as well as contributing

substantially to the local economy through rates and rents.

 

        In providing such airport facilities, with the consequent

detrimental effects on the environment, the Government had not

exceeded any relevant principle of proportionality, in that all

reasonable and practicable measures had been and were being taken to

reduce, and to minimise the effects of, aircraft noise.

 

 

        (b)  As to Article 1 of Protocol No. 1

 

        This provision was not concerned with peacefulness in its

literal sense, but with unjustified or arbitrary interference with a

person's title to, or right to possess, use or otherwise deal with,

his own property, whether movable or immovable.  The concept of

peaceful enjoyment of possessions in Article 1 could not, on its true

construction, be extended to provide guarantees against noise or other

environmental disturbance which, while affecting the comfort or

quality of life of an individual, has no effect on his title to, or

right to own, use or otherwise deal with, his property.  In this

regard, the Government again emphasised that there was no evidence to

suggest that the detrimental effect of the aircraft noise was such as

to render the applicant's property unsaleable or incapable of being

sold at a realistic market price having regard to the price originally

paid for the property.

 

        If, contrary to the primary contention, the applicant's

exposure to aircraft noise could and did constitute an interference

with his right to peaceful enjoyment of his property for the purposes

of the first sentence of Article 1, it did not follow that such

interference gave rise to a violation of the Article.

 

        Having regard to the particular circumstances of the

applicant and to the extensive mesures taken by the Government to

reduce or control, and to abate the effect of, aircraft noise in the

vicinity of Heathrow Airport, the facts of the present application did

not disclose that the fair balance was upset between the protection of

the applicant's right of property and the requirements of the general

interest.

 

        Even if exposure of an individual to aircraft noise could

constitute an interference with the applicant's right to peaceful

enjoyment of his possessions such interference did not amount to a

violation.  Here again the notion of balance came into play and it

would be wrong to conclude that in all cases of an interference the

provision of compensation was a necessary ingredient of a fair balance

between public and private rights.  A right to compensation could only

form a necessary ingredient in a fair balance if there was evidence

that the noise had rendered the property unsaleable or incapable of

being sold at a realistic price.

 

 

        (c)  As to Article 6 para. 1 of the Convention

 

        Section 76 of the Civil Aviation Act 1982 was not arbitrary or

unreasonable.  It did not restrict the applicant's right of access to

a court in respect of nuisance from aircraft noise so as to constitute

a denial of such right in breach of Article 6 para. 1.  The section

 

was only applicable in so far as an aircraft was flying at a height

above the ground which is reasonable in all the circumstances of the

case and in so far as there has been  no breach of any Air Navigation

Order including orders relating to the noise certification of

aircraft.  Whether section 76 did afford a defence or not in any

individual case, was a matter for the domestic courts to determine.

There existed no procedural or substantive bars which would prevent a

plaintiff from invoking the jurisdiction of the court to test this

matter.

 

        As in the case of section 141 of the Mental Health Act, the

effect of section 76 was in any event much more limited than might at

first sight appear.  For an actionable private nuisance to arise at

common law, it was necessary to do more than merely show an

interference with the plaintiff's use and enjoyment of his land.  A

plaintiff had additionally to establish that the interference was

unreasonable.  What is reasonable depended on all the circumstances of

the case, including such matters as the location of the land in

question and the nature and manner of performance of the activity

causing the nuisance.

 

        Thus even apart from section 76, the prospect of an owner of

property near to an airport successfully establishing a case in noise

nuisance against an airline operator in the absence of evidence that

the operator flew unreasonably low, or in breach of the relevant

statutory regulations, was a very remote prospect.  The limitations on

the liability of airline operators imposed by the operation of

section 76 CAA, did not, therefore, impair the essence of the

applicant's right to a court or transgress the principle of

proportionality in breach of Article 6 para. 1 of the Convention.

 

 

        (d)  As to Article 13 of the Convention

 

        The primary contention is that the applicant's claims do not

fall within the scope of the Convention and that accordingly Article 13

is inapplicable.

 

        If, however, Article 13 was applicable its requirements were

satisfied.  It was true that the remedies available to the applicant

to complain about and to seek redress for the general noise climate,

which he experiences on his property, were very limited.  In so far as

he was able to show that a particular airline operator had flown at a

height that was unreasonable in all the circumstances, or had flown in

breach of the provisions of any air navigation order, he would of

course have his normal remedy against the airline operator in court

proceedings based in nuisance and/or in trespass.  The remedy might

take the form of an action for damages or, in the event of repeated

infringements, an injunction to restrain the operator from continuing

to fly in such a manner.  And the applicant would be entitled to test

in court whether the airline operator in question did fly unreasonably

low or in breach of any relevant Air Navigation Order.

 

        In addition, in the event that the applicant were able to show

that the Secretary of State had failed to enforce the statutory

requirements imposed by him under the Civil Aviation Act to reduce and

control aircraft noise, he would probably also have the remedy by way

of mandamus to compel the Secretary of State to ensure compliance with

the statutory requirements.

 

        Apart from these limited categories of cases, the applicant

would, at present, have no remedy whereby he could complain about

noise nuisance and obtain redress, there being no relevant

development, in his case, which would enable him to claim compensation

under the Land Compensation Act 1973.

 

        In this context it is pointed out that the approach in the

United Kingdom - in common with a number of States in Europe and

elsewhere - to the problems of aircraft noise has in general been to

endeavour to reduce and control the noise and to mitigate its effect,

rather than to provide concrete remedies.  It is sought to achieve

this end by a succession of measures which have had, and it is hoped

will continue to have, the desired effect of generally improving the

noise climate around airports, noise certification, night

restrictions, minimum noise routes, noise-related charges and

substantial noise insulation grants.

 

        While it is accepted that certain States have gone further and

have already introduced some system of compulsory acquisition of

noise-affected property, it is clear from a survey of measures dealing

with noise problems at airports, which was prepared by the

International Civil Aviation Organisation (ICAO), that such a system is

by no means universal, either in Europe or elsewhere.

 

        Notwithstanding the absence of such a measure, the admittedly

limited remedies available to the applicant, combined with the

extensive measures in force in the United Kingdom to control and abate

noise nuisance and to mitigate its effect, did satisfy the

requirements of Article 13 of the Convention, in so far as that Article

was applicable.

 

 

B.      The applicant

 

        1.  On the facts

 

        According to a recent report of the Scientific Services Branch

(SSB) Noise Group, submitted by the applicant, the applicant's

property is regularly overflown at night, the average number of

landing aircraft being one and three for departing aircraft.  There

are consequently one or two events on any one night giving rise to a

maximum noise level of more than 90 dB, and inhabitants are likely

to be woken by aircraft once every other night.

 

        The applicant points out that his property is nearly as close

to the end of the northern runway as is the property of the applicant

Baggs to the end of the southern runway.  The two runways are only a

kilometre apart, so that his property is also affected by aircraft

using the southern runway, in particular aircraft heading for the

Burnham route passing near his property.

 

        The height of aircraft varies considerably according to

weight, weather, wind velocity, temperature etc.  The average height

of arriving aircraft is indicated to be 300 ft. and of departing

aircraft between 700 and 1,600 ft.

 

        It is alleged to be quite common for aircraft to be landing

every one-and-a-half minutes for long periods of time.  The pattern

for take-off can vary but regular take-offs continue at this sort of

frequency for several hours.  Therefore, in all the circumstances,

noise exposure from 50 NNI to the airport is, in the applicant's

submission, unacceptable.  The Government's allegations on the effects

of noise insulation are considered to be unrealistic.  Sound

insulation only provides partial reduction of noise with normal

conversation and listening to radio or television remaining affected.

Also, it provided of course no relief with regard to all outdoor

activities.

 

        According to the applicant, some 78,850 people live within

the 60 NNI contour, relating to an approximate total of 29,600

residential units of occupation.  Unlike the applicant Baggs, the

present applicant does not wish to be bought out.  His family has

farmed in the area for generations and he does not want to move.  He

has never put the property on the market and to that extent has not

personally been a victim of the non-appreciation in property values

complained of by Mr Baggs.  He considers, however, that if he were to

try to sell his property the sale price would have to be low.

 

 

        2.  On the merits

 

        (a)  As to Article 8 of the Convention and Article 1

             of Protocol No. 1

 

        The disturbance complained of is, according to the applicant,

intentional because it arises as the direct result of a decision made

by the respondent Government with full knowledge of the injurious

effects on him and others in identical circumstances.

 

        He denies that the noise abatement measures so far taken

strike a balance between public and private interest.  The lack of

compensation had an entirely disproportionate effect on a few

individuals.  The cost to the BAA could be spread among the millions

of users at Heathrow.  At present, the burden fell on the relatively

small number of people living in such proximity to the runways that

they suffer a nuisance, and not a mere inconvenience, from the noise.

 

        (b)  As to Articles 6 para. 1 and 13 of the Convention

 

        The statutory remedies referred to by the Government are, in

the applicant's submissions, illusory and have no practical relevance

in his particular circumstances.

 

        He argues that the Commission's decisions of 16 and 17 October

1985 in the parallel and disjoined cases Baggs and Powell v. the

United Kingdom (also registered under Application No. 9310/81) are

based on a misunderstanding of the English law in so far as they

declare the complaints under Article 6 para. 1 to be manifestly ill-

 

founded.  Citing various decisions of English courts he submits that

in English law a plaintiff normally can sue in nuisance for

unreasonable noise levels.  Only the statute bar of section 76 CAA

prevented him from invoking this right.  Similar to the Ashingdane

case, where the bar did not arise from the plaintiff's status but from

the immunity of the Secretary of State and the Area Health Authority,

an individual wishing to sue in nuisance on account of unreasonable

levels of aircraft noise is not prevented from doing so by virtue of

his status but by virtue of the immunity conferred on the BAA and

airline operators according to section 76 CAA.  The immunity is

defined in terms of facts (flight of aircraft at a reasonable height)

but obviously confers immunity on the persons or bodies legally

responsible for such flights, just as the Mental Health Act conferred

immunity on persons otherwise legally responsible for their actions.

 

        Allowing individuals to sue in nuisance would not open the

door to vexatious litigation but would provide an effective remedy.

To sue in nuisance one would have to prove unreasonable user.  The

running of an airport is, however, not as such, unreasonable user.  It

would therefore be necessary to show that noise levels were

unreasonable even given the fact of proximity to an airport.  If the

Government and the British Airports Authority had done all they could

by means, for example, of regulating night take-offs and landings,

effective noise monitoring and insulation grants etc., then no

plaintiff would ever succeed.

 

        In any event whether section 76 CAA 1982 was regarded as a bar

to jurisdiction or as a limit of a cause of action, it had the effect

of depriving him of a determination of his case on the merits.

Therefore the very essence of the right to a court, as guaranteed by

Article 6 para. 1, was impaired.  As he had no effective remedy to

complain about noise nuisance, Article 13 was likewise violated.

 

 

THE LAW

 

1.      The applicant complains of noise and vibration nuisance caused

by air traffic at Heathrow Airport.  In addition he complains that

section 76 Civil Aviation Act (CAA) 1982 prevents him from raising his

complaint before a national court.

 

2.      The Commission has already held in the Arrondelle case (No.

7889/77, Dec. 15.7.80, D.R. 19, p. 186) that the United Kingdom is

answerable under the Convention with regard to a complaint on aircraft

noise in the vicinity of British airports because it is a State body,

namely the British Airports Authority (BAA) which is responsible for

the planning and construction of civil airports.  In addition air

traffic is regulated by legislation, the Civil Aviation Act (CAA)

1982.

 

3.      The applicant complains of a continuing situation with regard

to which, uncontestably, no specific remedy exists under British law.

The applicant can, in these circumstances, be considered to have

complied with the condition of Article 26 of the Convention.

 

4.      The applicant first invoked Article 8 of the Convention.  He

submits that the noise nuisance complained of constitutes an

interference with the right to respect of his private life and of

his home.

 

        The Commission considers that Article 8 para. 1 of the

Convention which guarantees this right cannot be interpreted so as to

apply only with regard to direct measures taken by the authorities

against the privacy and/or home of an individual.  It may also cover

indirect intrusions which are unavoidable consequences of measures not

at all directed against private individuals.  In this context it has

to be noted that a State has not only to respect but also to protect

the rights guaranteed by Article 8 para. 1 (see Eur.  Court H.R.,

Marckx judgment of 13 June 1979, Series A No. 31, para. 31).

Considerable noise nuisance can undoubtedly affect the physical

well-being of a person and thus interfere with his private life.  It

may also deprive a person of the possibility of enjoying the amenities

of his home.  In the present case the 60 NNI contour within which the

applicant is living is uncontestedly an area in which, due to

substantial noise nuisance, new housing developments are not

permitted.  The average noise level of aircraft overflying the

applicant's home attains, according to the respondent Government's

admissions, peaks of about 110 PNdB.  It can be deduced from the

Department of Trade's Press Notice of 21 February 1978, that such

noise level is likely to awaken persons sleeping in an insulated room.

 

        The Commission considers that in the given circumstances the

level of noise amounts to an interference with the above-mentioned

rights guaranteed by Article 8 para. 1.

 

5.      It therefore remains to be examined whether the interference

is justified under para. 2 of the Article.

 

        It is not in question that the operation of Heathrow Airport has a

legal basis.  Furthermore, it cannot be doubted that the running of an

airport and the increasing use of jet aircraft are in the interest of

the economic well-being of a country and are also necessary in a

democratic society.  It is essential for developing external and

internal trade by providing speedy means of transportation and it is

also an important factor for the development of tourism.

 

        The interference with the applicant's right under Article 8

para. 1 is also proportionate to the legitimate aim connected with the

running of the airport.  It is true that where a State is allowed to

restrict rights or freedoms guaranteed by the Convention, the

principle of proportionality may oblige it to make sure that such

restrictions do not create an unreasonable burden for the individual

concerned.

 

        The Commission notes in this context that the United Kingdom

authorities have, according to the applicant's own submissions, taken

various measures to control and limit the noise nuisance connected

with the running of Heathrow Airport.   In particular it has not been

disputed by the applicant that he qualified for a noise insulation

grant.

 

        It has further to be noted that the applicant took up

residence at Poyle Park in 1961 while before he lived a little further

away from the airport and its northern runway, namely in the village

of Horton which is at present only within the 55 NNI contour.  In 1961

jet aircraft were already in service.  Also, the airport had already

expanded considerably.  The applicant must therefore have realised

that he did not choose a very peaceful environment for his home.  He

has not alleged that at the time he had no reason to expect further

expansion of air traffic increasing the noise level at his site, or

that he had no other choice than to take up residence at Poyle Park.

He thus took the risk of choosing a home in an environment which was

likely to deteriorate.

 

        To this extent the case can be distinguished from the case of

the applicant Baggs who finished the construction of his home in 1950.

 

        Furthermore, the present case is distinguishable from the

Baggs case in so far as the applicant Baggs is living within a

72.5 NNI contour where the maximum noise levels considerably exceed

those indicated for the present applicant's home.  It has to be noted

in this context that the PndB scale is logarithmic, which means that

every increase of 10 represents a doubling of the loudness.

 

        According to the applicant's own submissions an important

number of people live within the 60 NNI contour while uncontestedly

only very few people are exposed to the noise level the applicant

Baggs has to endure and which renders Mr Baggs' property practically

unsaleable.  As the Convention does not in principle guarantee a right

to a peaceful environment, noise nuisance for which a Government can,

as in the present case, be held responsible, cannot be considered to

constitute an unreasonable burden for the individuals concerned if

they have the possibility of moving elsewhere without substantial

difficulties and losses.  The present applicant has himself stated in

a letter of 5 February 1985 submitted with his counsel's observations

of 18 February 1985 on admissibility and merits, that local demand for

houses was sufficient to ensure rapid sale.  Although the sale of his

own property may, as he alleges, encounter certain difficulties there

is nothing to show that such difficulties, which are partly due to the

fact that the applicant's property is used for farming, are

insurmountable.

 

        The Commission concludes that the circumstances of the present

case do not disclose that the applicant is subjected to a degree and

frequency of noise nuisance which would have to be considered

intolerable and exceptional compared with the situation of a large

number of people living within the vicinity of an airport.  The

applicant's situation is not identical with that of the applicant

Baggs who cannot escape the noise nuisance without sacrificing his

house, because it is practically unsaleable.  The interference

complained of is consequently not disproportionate to the legitimate

aim connected with the running of the airport.  It follows that this

part of the application is manifestly ill-founded within the meaning

of Article 27 para. 2 of the Convention.

 

6.      The applicant has further invoked Article 1 of Protocol No. 1

which guarantees the right to the peaceful enjoyment of possessions.

This provision is mainly concerned with the arbitrary confiscation of

property and does not, in principle, guarantee a right to the peaceful

enjoyment of possessions in a pleasant environment.  It is true that

aircraft noise nuisance of considerable importance both as to level

and frequency may seriously affect the value of real property or even

render it unsaleable and thus amount to a partial taking of property.

However, the applicant has not submitted any evidence showing that the

value of his property was substantially diminished on the ground of

aircraft noise so as to constitute a disproportionate burden amounting

to a partial taking of property necessitating payment of compensation.

 

        An examination by the Commission of this complaint does not

therefore disclose any appearance of a violation of Article 1 of

Protocol No. 1.

 

        It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2 of the

Convention.

 

7.     The applicant has also alleged a violation of Article 6 of the

Convention on the ground that the Civil Aviation Act 1982 excludes a

right of action against trespass and nuisance by reason of the flight

of an aircraft over property and a right of action against nuisance by

reason of the noise or irritation caused by an aircraft or an

aerodrome.

 

        The respondent Government consider that section 76 CAA does

not impair the very essence of a right to a court.

 

        It is true that, according to the jurisprudence of the

European Court of Human Rights, any civil claim must be able to be

submitted to a court (Eur.  Court H.R., Golder judgment of 21 February

1975, Series A No. 18, p. 18, para. 36).  However Article 6 para. 1

does not impose requirements in respect of the nature and scope of the

relevant national law governing the "right" in question.  Nor does the

Commission consider that it is, in principle, competent to determine

or review the substantive content of the civil law which ought to

obtain in the State Party any more than it could in respect of

substantive criminal law.  As it has been stated in the Sporrong and

Lönnroth case:

 

        "Whether a right is at all at issue in a particular case

        depends primarily on the legal system of the State concerned.

        It is true that the concept of a 'right' is itself autonomous

        to some degree.  Thus it is not decisive for the purposes of

        Article 6 para. 1 that a given privilege or interest which exists in

        a domestic legal system is not classified or described as a

        'right' by that system.  However, it is clear that the

        Convention organs could not create by way of interpretation

        of Article 6 para. 1 a substantive right which has no legal basis

        whatsoever in the State concerned."  (Comm.  Report 8.10.80,

        para. 150;  see also No. 8282/78, Dec. 14.7.80, D.R. 21, p. 109;

        Kaplan v. the United Kingdom, Comm.  Report 17.7.80, D.R. 21,

        para. 134.)

 

        Unlike in the cases so far considered by the Commission (see

No. 7443/76, Dec. 10.12.76, D.R. 8, para. 216;  Nos. 10096/82 and

10475/83, both of 9.10.84) and the European Court of Human Rights (see

Ashingdane judgment of 28 May 1985, Series A No. 93) the provision in

section 76 CAA does not confer an immunity from liability in respect

of actions of certain and distinct groups of persons (such as

soldiers or mental health patients as in the cases cited) but excludes

generally any action in respect of trespass or nuisance caused by

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Application No. 9310/81

 

 

Richard POWELL

 

and

 

Michael RAYNER

 

 

 

against

 

the UNITED KINGDOM

 

 

 

 

 

 

 

 

 

REPORT OF THE COMMISSION

 

(adopted on 19 January 1989)

 

 

- i -

 

9310/81

 

 

TABLE OF CONTENTS

 

 

                                                                  page

 

I.      INTRODUCTION (paras. 1-17) ............................   1-3

 

        A.  The application (paras. 2-4) ......................    1

 

        B.  The proceedings (paras. 5-12) .....................   1-3

 

        C.  The present Report (paras. 13-17) .................    3

 

 

II.     ESTABLISHMENT OF THE FACTS (paras. 18-30) .............   4-6

 

        A.  The particular circumstances of the case

            (paras. 18-21) ....................................    4

 

        B.  The relevant domestic law and practice

            (paras. 22-30) ....................................   4-6

 

 

III.    SUBMISSIONS OF THE PARTIES (paras. 31-43) .............   7-10

 

        A.  The applicants (paras. 31-38) .....................   7-8

 

        B.  The Government (paras. 39-43) .....................   9-10

 

 

IV.     OPINION OF THE COMMISSION (paras. 44-66) ..............   11-17

 

        A.  Points at issue (para. 44) ........................    11

 

        B.  General considerations (paras. 45-47) .............   11-13

 

        C.  The present case (paras. 48-62) ...................   13-17

 

            a) Article 13 of the Convention as regards the

               claim under Article 1 of Protocol No. 1

               (paras. 51-52) .................................    14

 

               Conclusion (para. 52) ..........................    14

 

            b) Article 13 of the Convention as regards the

               claim under Article 6 para. 1 (paras. 53-55) ...   14-15

 

               Conclusion (para. 55) ..........................    15

 

            c) Article 13 of the Convention as regards the

               claim under Article 8 (paras. 56-62) ...........   15-17

 

 

- ii -

 

9310/81

 

 

 

                                                                  page

 

 

               aa)  The first applicant (paras. 56-57) ........    15

 

                    Conclusion (para. 57) .....................    15

 

               bb)  The second applicant (paras. 58-62) .......   15-17

 

                    Conclusion (para. 62) .....................    17

 

        D.  Recapitulation (paras. 63-66) .....................    17

 

 

 

 

 

 

 

APPENDIX I      History of the proceedings

                before the Commission .........................   18-19

 

APPENDIX II     Decision on the admissibility

                of Mr.  Powell's application ...................    20

 

APPENDIX III    Decision on the admissibility

                of Mr.  Rayner's application ...................    37

 

I.      INTRODUCTION

 

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

 

 

A.      The application

 

2.      The applicants, Mr.  R. Powell and Mr.  M. Rayner, are United

Kingdom citizens, born in 1928 and 1938 respectively.  The first

applicant is a businessman who lives in Esher, Surrey.  The second

applicant is a farmer who lives and farms in Colnbrook, Slough,

Berkshire.  They are committee members of the Federation of Heathrow

Anti-Noise Groups, whose aim is to contain and improve the noise

environment at Heathrow Airport, which is near the homes of both

applicants.

 

3.      The applicants were represented before the Commission by Miss

F. Hampson, LL.B., who succeeded Mr.  N.C. Walsh, Solicitor, Messrs.

Blaker, Son and Young, Solicitors, Lewes, East Sussex.  The Government

were represented by their Agents, Mrs.  A. Glover, succeeded by Miss

E.S. Wilmshurst and Mr.  M.C. Wood, all of the Foreign and Commonwealth

Office.

 

4.      The application was originally lodged together with two other

parties, the Federation of Heathrow Anti-Noise Groups, and Mr.  F. Baggs.

All the applicants complained originally of the excessive noise levels

generated by landing or departing aircraft at Heathrow Airport and

alleged violations of Articles 6 para. 1, 8 and 13 of the Convention

and Article 1 of Protocol No. 1 to the Convention.  The Commission

rejected the case of the Federation in a partial decision of 15 March

1984.  The part of the case brought by Mr.  Baggs was settled between

the parties, resulting in a Report of the Commission pursuant to

Article 30 of the Convention, adopted on 8 July 1987.  The complaints

of MM. Powell and Rayner concerning Articles 6 para. 1 and 8 of the

Convention and Article 1 of Protocol No. 1 were rejected in the

Commission's decisions on admissibility dated 17 October 1985 and 16

July 1986 respectively.  In those latter decisions the Commission also

declared admissible the applicants' identical complaint under Article

13 of the Convention, namely, that they had no effective remedy at

their disposal for their substantive grievance about the noise

nuisance created by Heathrow Airport and its effects on the

environment of their homes nearby.  This is the subject of the present

Report.

 

 

B.      The proceedings

 

5.      The application was introduced on 31 December 1980 and

registered on 23 March 1981.

 

6.      On 20 September 1982 the Rapporteur, pursuant to Rule 42 para.

2 (a) of the Commission's Rules of Procedure, requested further

information from the applicants concerning factual circumstances.  This

information was submitted on 11 October and 30 November 1982.  On

15 March 1984 the Commission decided, in accordance with Rule 42 para.

 

2 (b) of its Rules of Procedure, to give notice of the application to

the respondent Government and to invite them to present their

observations in writing on the admissibility and merits of the

application.

 

7.      The Government submitted their observations on 21 September

1984.  The applicants replied on 18 February 1985.  On 13 May 1985 the

Commission decided to deal separately with the applicants and to

adjourn its consideration of the circumstances of MM. Powell and

Rayner, pending its examination of Mr.  Baggs' part of the application.

A hearing on admissibility and merits was held in Mr.  Baggs' case

on 16 October 1985.  The Commission declared his case partially

admissible, following which, on 17 October 1985, Mr.  Powell's

application concerning his complaint under Article 13 of the

Convention was declared admissible, the remainder of his complaints

being rejected.  That same day the Commission also decided to request

further information, pursuant to Rule 42 para. 3 (a) of its Rules of

Procedure, from the Government and Mr.  Rayner concerning his case.  The

Government submitted their further observations and comments about Mr.

Rayner's case on 27 November 1985, 29 January 1986 and 2 July 1986,

which were exchanged with the responses of Mr.  Rayner's representative

in letters dated 9 December 1985, 7 January 1986 and 22 and 24 April

1986.  The Commission further considered the admissibility of Mr.

Rayner's case on 16 July 1986 and declared it admissible as regards

his Article 13 complaint, the remainder of his claims being rejected.

 

8.      In the meantime, on 1 April 1986 the parties were sent the

text of the Commission's decision on admissibility in Mr.  Powell's

case and invited, pursuant to Rule 45 of the Commission's Rules of

Procedure, to submit any additional observations they wished to make

on its merits.  The Government submitted their further observations on

29 July 1986, to which the applicants' representative replied on 1

September 1986 and 9 March 1987, the latter in respect of both Mr.

Rayner's and Mr.  Powell's claims.

 

9.      During these proceedings negotiations for a friendly

settlement of Mr.  Baggs' part of the case were successfully conducted,

resulting in the adoption of a Report in accordance with Article 30 of

the Convention on 8 July 1987.

 

10.     The Commission examined the merits of MM. Powell's and Rayner's

part of the application on 10 October 1987 and decided to adjourn the

matter pending the outcome of the case of Boyle and Rice v. the United

Kingdom, which had been referred to the European Court of Human Rights

on 18 July 1986, and concerned complex issues under Article 13 of the

Convention, albeit in relation to prison conditions.  The Court gave

its judgment in that case on 27 April 1988.  On 18 May 1988 the

applicants were invited to submit any comments they had on the

relevance of this judgment to their case.  These comments were

submitted on 17 August and 28 October 1988.  The Government responded

to the first of these submissions on 4 October 1988.

 

11.     On 18 January 1989 the Commission again examined the merits of

the remaining case and took their final votes.  On 19 January 1989 the

Commission adopted the text of the Report.

 

12.     After declaring the case of MM. Powell and Rayner admissible,

the Commission, acting in accordance with Article 28 para. b of the

Convention, placed itself at the disposal of the parties with a view

to securing a friendly settlement of the case.  In the light of the

parties' reaction, the Commission now finds that there is no basis

upon which a settlement can be reached.

 

 

C.      The present Report

 

13.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

 

                MM.  J.A. FROWEIN, Acting President

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

 

14.     The text of this Report was adopted by the Commission on

20 January 1989 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

 

15.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

 

        1)  to establish the facts, and

 

        2)  to state an opinion as to whether the facts found

            disclose a breach by the State concerned of its

            obligations under the Convention.

 

16.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decisions on the admissibility of the application as Appendices II and

III.

 

17.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.     ESTABLISHMENT OF THE FACTS

 

 

A.      The particular circumstances of the case

 

18.     The first applicant bought his house in Esher, Surrey, in

1957.  The house is several miles from Heathrow Airport, but as of

1972 the area in which the house is situated became one of the flight

departure routes from Heathrow in operation about one third of the

year, particularly in the summer.  In respect of aircraft noise

nuisance zones, the applicant's property is just within the 35 NNI

contour, considered to be a low noise nuisance rating.  Half a million

other people live within this contour area.

 

19.     NNI signifies the Noise and Number Index based on such factors

as the number of aircraft flights heard above a certain noise level

(80 PNdB, perceived noise decibels), flying in daytime during the busy

summer months.  The NNI is part of the criteria applied in planning

controls, so that land within the 35-39 NNI contours may be used for

residential development, planning permission not being refused on

noise grounds alone.  However land within the 40-50 NNI contours

(moderate noise annoyance zone) will not be given over to development

except for the infilling of existing built up areas, on condition that

the appropriate sound insulation is used.  No development whatsoever

is permitted for land falling within the 60 NNI and over contours

(rated high noise nuisance zones).  It is to be noted that the NNI

calculation reflects a logarithmic element in the PNdB scale, with the

result that every increase of 10 in that scale represents

approximately a doubling of the loudness.

 

20.     In 1961 the second applicant took up residence of his home and

farm in Colnbrook, Slough, Berkshire.  It is about one and a third

miles west of and in a direct line with Heathrow Airport's northern

runway.  This property is within the 60 NNI contour, i.e. an area of

high noise annoyance for residents, and is regularly overflown during

daytime and to a more limited extent at night.  About 1500 people

around Heathrow Airport experience a noise exposure equal to or more

than that of the second applicant.

 

21.     Heathrow Airport has undergone major development and expansion

since the 1950's and the inauguration of jet aircraft.  It now has

four terminals and is the leading United Kingdom airport, making an

important contribution to the country's economy.  Various measures

have been taken to meet the big increase in air traffic and its

resultant noise nuisance.  These measures include improvement of the

aircraft themselves, restrictions on night jet movements, continual

noise monitoring, the designation of minimum noise routes and the

creation of noise insulation grants.

 

 

B.      The relevant domestic law and practice

 

22.     It is agreed between the parties that the remedies available

under English law to the applicants for their complaints about airport

noise nuisance are limited.

 

23.     Compensation for loss of value of houses and land from airport

noise is envisaged by the Land Compensation Act 1973 to meet problems

created by the environmental impact of new or altered public works.

However such compensation is tied to new or altered public works first

brought into use after 16 October 1969.  Intensification of an

 

existing use (i.e. from works which had been first brought into use

before this date) is not compensateable.  Consequently there is, for

example, no right under English law to limit the flow of traffic on

established roads or the use of other similar public facilities.  Those

who live alongside existing facilities must expect the facility to be

used one day to its full extent.  Thus the applicants would have no

claim for compensation under the Land Compensation Act 1973, there

being no relevant new or altered development in the case of Heathrow

Airport.

 

24.     After the completion of the fourth Terminal at Heathrow,

Heathrow Airport Ltd (a subsidiary of the successor company, BAA plc,

to the British Airport Authority) drew up a Scheme for the purchase of

noise blighted properties close to Heathrow Airport.  By this Scheme

the company was able to buy property severely affected by aircraft

noise at Heathrow (within the 65 NNI contour) where the owner had

acquired the property before 17 October 1969 and where he wished to

move but could not do so except at a deflated price.  Claims had to be

made between 1 January 1987 and 31 December 1988.  By virtue of the

contour limitation the applicants' property is excluded from the

Scheme.

 

25.     The Noise Abatement Act 1960 specifically exempts aircraft

noise from its protection.  The liability of aircraft operators in

respect of actions for trespass and nuisance is further limited by

section 76 of the Civil Aviation Act 1982.  Section 76(1) of the 1982

Act provides as follows:

 

        "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 or of any Orders under section 62 above

        have been duly complied with and there has been no breach

        of section 81 below."

 

26.     Section 76(2) of the 1982 Act goes on to provide for strict

liability (i.e. liability without proof of negligence or intention)

where material loss or damage to any person or property on land or

water is caused by, inter alia, an aircraft in flight or an object

falling from an aircraft.

 

27.     The provisions of section 76 are directly comparable to those

in the Rome Convention on Damage Caused by Foreign Aircraft to Third

Parties on the Surface 1952 ("the Rome Convention").  Article 1 of the

Rome Convention (the parties to which include Belgium, Luxembourg,

Italy and Spain as well as many other countries outside Europe)

provides as follows:

 

        "Any person who suffers damage on the surface shall,

        upon proof only that damage was caused by an aircraft

        in flight or by any person or thing falling therefrom,

        be entitled to compensation as provided by this

        Convention.  Nevertheless there shall be no right to

        compensation if the damage is not a direct consequence

        of the incident giving rise thereto, or if the damage

 

        results from the mere fact of passage of the aircraft

        through the airspace in conformity with existing air

        traffic regulations."

 

28.     However section 76(1) does not exclude all liability on the

part of aircraft operators for trespass and nuisance caused by

aircraft in flight.  In the first place, the exemption only applies in

respect of aircraft flying at a reasonable height above the ground.

What is reasonable is a question of fact depending on all the relevant

circumstances which would include not merely the factors of weather

specifically referred to in the section, but such matters as the size,

speed and noise of the aircraft in question.  Secondly, before the

exemption applies, there must be compliance with the statutory

provisions referred to in section 76(1) itself.  In practice, this

means the provisions of the Air Navigation Order 1980, the Air

Navigation (General) Regulations 1981, the Rules of the Air and Air

Traffic Control Regulations 1981 and, especially important in the

present context, the Air Navigation (Noise Certification) Order 1979.

Thus, if, for example, an aircraft flies overloaded or otherwise than

in accordance with a relevant Noise Certificate, its operator will not

be entitled to rely upon the section as a defence to any action for

trespass or nuisance.

 

29.     In other words, if the applicants were able to show that a

particular airline operator had flown at an height that was

unreasonable in all the circumstances, or had flown in breach of the

provisions of any air navigation order, they might have a remedy

against that operator in civil court proceedings based on nuisance

and/or trespass.  The remedy might take the form of an action for

damages or, in the event of repeated infringements, an injunction to

restrain the operator from continuing to fly in such a manner.  The

applicants have no remedy for noise nuisance emanating from flights

observing a reasonable height and other aviation regulations.

 

30.     Finally, in the event that the applicants were able to show

that the Secretary of State had failed to enforce the statutory

requirements imposed by him under the Civil Aviation Act to reduce and

control aircraft noise a possible action might lie in mandamus to

compel the Secretary of State to ensure compliance with those

requirements.

 

III.    SUBMISSIONS OF THE PARTIES

 

 

A.      The applicants

 

31.     The applicants complain in relation to Article 13 of the

Convention that they consider themselves to be victims of excessive

noise levels emanating from Heathrow Airport which seriously interfere

with their private and family lives, ensured by Article 8 of the

Convention.  However there is no domestic forum capable of providing a

remedy to the alleged violation of their Article 8 rights.  Nor is

there any domestic authority satisfying Article 13 of the Convention

which can deal with the applicants' claim under Article 6 para. 1 of

the Convention that they are denied access to court in respect of

their civil rights.

 

32.     The applicants refer to the judgment of the European Court of

Human Rights in the case of Boyle and Rice confirming its earlier

case-law that "the existence of an actual breach of another provision

of the Convention (a "substantive provision") is not a prerequisite

for the application" of Article 13 of the Convention.  However an

applicant must show that he has an arguable claim of a violation of

such a substantive provision before he can challenge the absence of

remedies under Article 13.  The Court has declined to lay down any

criteria as to what may be an arguable claim.  Such a claim is not

simply a matter falling within the scope of a substantive Article, nor

must it necessarily be a prima facie, admissible issue, for, as the

Court made it clear, arguable "does not mean ... that the Court must

hold a claim to be excluded from the operation of Article 13 if the

Commission has previously declared it manifestly ill-founded under the

substantive Article".  Nevertheless, the Commission's Decision on

Admissibility provides "significant pointers as to the arguable

character of the claims for the purposes of Article 13".  Thus whether

a claim is arguable depends on the "particular facts and the nature of

the legal issue or issues raised" (Eur.  Court H.R., Boyle and Rice

judgment of 27 April 1988, paras. 52-55).

 

33.     Following this approach of the Court the applicants submit

that they have arguable claims under Articles 8 and 6 para. 1 of the

Convention, for which no remedy was available, contrary to Article 13

of the Convention.

 

34.     As regards their claim under Article 8 of the Convention, the

applicants point out that the Commission examined in some depth the

justification for the alleged interference with the applicants'

private lives and homes caused by airport noise nuisance.  In the

Rayner case, in particular, the Commission found a clear interference

with the applicant's Article 8 rights which necessitated a careful

examination of these issues under Article 8 para. 2 of the Convention.

The applicants submit that they have an arguable claim that the

interference with their private lives and homes was not justified:

The applicants were established in their homes before 1961, after

which the noise nuisance from Heathrow Airport dramatically increased

with the construction of Terminals 3 and 4.  Noise insulation grants

are an ineffective way of mitigating noise nuisance, particularly for

people like Mr.  Rayner living within the 60 NNI contour, who are still

 

disturbed by aircraft noise despite such insulation.  Furthermore the

Government's setting of PNdB levels and flight quotas is also

ineffective because the Government do not enforce them and they are

regularly exceeded.

 

35.     As regards the applicants' claim under Article 6 para. 1 of

the Convention, the applicants submit that the Commission's Decisions

on Admissibility are misconceived.  They aver that compensation for

damage caused by noise nuisance is a matter of civil rights and

obligations falling within the scope of this provision of the

Convention, but access to this civil suit is barred in respect of

aircraft noise nuisance by section 76 of the Civil Aviation Act 1982.

The applicants contend that, arguably, this limitation on noise

nuisance claims reduces their "right to a court", having regard to the

rule of law in a democratic society, to such an extent as to impair

the very essence of their normal civil rights against noise nuisance

(cf.  Eur.  Court H.R., Ashingdane judgment of 28 May 1985, Series A no.

93, p. 24, para. 57).  But for the statute bar of section 76 of the

1982 Act Mr.  Powell would have an arguable case in nuisance and/or

trespass against the Heathrow Airport authorities that the noise

levels caused by aircraft are unreasonable, depending on the

definition given by domestic courts to the notion of reasonable.  Mr.

Rayner would have near certain success in such a suit because he can

show that the Government do not enforce their own PNdB and quota

limitations for night take-offs and landings.  The applicants submit,

therefore, that they have established an arguable case of a denial of

their right of access to court by virtue of the statute bar which does

not pursue a legitimate aim, or represent a proportionate pursuit of

whatever aim the Government might put forward.

 

36.     Having established that they have arguable claims that their

rights under Articles 8 and 6 have been violated, the applicants

contend that Article 13 is, therefore, applicable to their

complaints.  As the Commission acknowledged in the Decision on

Admissibility of Mr.  Rayner's case, no specific remedy exists under

British law for these complaints.  The Government have all but

conceded this fact.  Accordingly the applicants conclude that there is

a violation of Article 13 of the Convention in their case.

 

37.     In sum, it is submitted on behalf of the applicants that Mr.

Rayner clearly has an arguable claim that he is the victim of

violations of Articles 8 and 6 of the Convention.  There is no

national authority before which he can bring such a claim, this in

itself representing a violation of Article 13.  The same arguments

apply to the case of Mr.  Powell, but the degree of interference in his

right to respect for his private life is less than that suffered by

Mr.  Rayner, and the chance of his being able to sue successfully in

nuisance and/or trespass, in the absence of the statute bar, is also

less.  He therefore has an arguable claim under both Articles 8 and 6

but it is "less arguable" than that of Mr.  Rayner.

 

38.     Consequently the applicants would ask the Commission to find

that either or both has an arguable claim that their rights under

Articles 8 and 6 of the Convention have been violated.  They repeat

that the lack of any national authority before which they can bring

such an arguable claim itself represents a violation of Article 13.

 

B.      The Government

 

39.     The Government submit, first, that Article 13 is not

applicable to the applicants' claim of a breach of Article 6 para. 1

of the Convention.  Secondly, the applicants have no arguable claim to

be victims of a violation of the rights set out in Article 8 of the

Convention and Article 1 of Protocol No. 1 to the Convention and,

thirdly, in any event, the aggregate of remedies provided for under

domestic law satisfies the requirements of Article 13 in the present

case.

 

40.     As regards the first submission, the Government state that

since the Commission rejected the applicants' Article 6 claim of a

denial of access to court, no separate issue arises under Article 13

of the Convention whose requirements are less strict and are absorbed

by the former (Eur.  Court H.R., Silver and Others judgment of 25 March

1983, Series A no. 61, p. 41, para. 110).  Alternatively, the

applicants have no arguable claim under Article 6 para. 1 of the

Convention or are unable to claim an Article 13 remedy against

legislation (i.e. section 76 of the Civil Aviation Act 1982) which is

allegedly not in conformity with the Convention (loc. cit. para. 113

and Eur.  Court H.R., James and Others judgment of 21 February 1986,

Series A no. 98, p. 47, para. 85).

 

41.     As regards the second submission, the Government contend that

the applicants have no arguable claim under Article 8 of the

Convention since any interference with their rights under the

provision was in the circumstances of their case fully justified under

paragraph 2 of the Article for the following reasons:  The

construction of Heathrow Airport was lawful; it serves the economic

interests of the country and is necessary in a democratic society.  Any

interference with the applicants' rights was proportionate to the

legitimate aim connected with running an airport and in Mr.  Powell's

case, in particular, such interference was minimal as he lives in a

low noise nuisance area.  As regards the claim under Article 1 of

Protocol No. 1, the applicants have no arguable claim that the noise

nuisance affected their property rights, for example, by diminishing

the value of their homes.

 

42.     It is significant that the Commission declared the applicants'

complaints under Articles 6 and 8 and Article 1 of Protocol No. 1

inadmissible as being manifestly ill-founded, particularly in Mr.

Powell's case, where, as regards Article 8 of the Convention, for

example, the first applicant was unable to establish a clear

interference with his rights.  The Government rely on the Court's

judgment in the case of Boyle and Rice, in which it was stated that

"on the ordinary meaning of words, it is difficult to conceive how a

claim that is 'manifestly ill-founded' can nevertheless be 'arguable',

and vice versa".  Nevertheless, if the Commission's decision is not

decisive on this point, it provides "significant pointers as to the

arguable character of the claims for the purposes of Article 13" (Eur.

Court H.R., Boyle and Rice judgment of 27 April 1988, para. 54).  In

these circumstances the Government consider that the applicants'

claims cannot be described as arguable and that, therefore, no

violation of Article 13 of the Convention has occurred in their case.

 

43.     Finally, as regards the third submission, the Government

submit that, in any event, an aggregate of remedies exists which

satisfies Article 13 of the Convention in respect of the applicants'

claims: an action will lie in nuisance for aircraft flying in breach

of altitude and other aviation regulations when the defence provided

by section 76 of the Civil Aviation Act 1982 will not apply; a right

to compensation in certain circumstances exists under the Land

Compensation Act 1973 for loss of value of houses and land from

airport noise; there also exists a statutory scheme for the provision

of grants for the sound insulation of dwellings and there are

statutory requirements imposed and enforced by the Secretary of State

to reduce and control, and to mitigate the effect of, noise from

aircraft using Heathrow Airport.

 

IV.     OPINION OF THE COMMISSION

 

 

A.      Points at issue

 

44.     The following are the points at issue in the present

application:

 

      - whether the applicants had an effective remedy, pursuant to

        Article 13 of the Convention, in respect of their complaint

        that there has been an unjustified interference with their

        property rights ensured by Article 1 of Protocol No. 1 to

        the Convention;

 

      - whether the applicants had an effective remedy, pursuant to

        Article 13 of the Convention, in respect of their complaint

        of a denial of access to court in the determination of their

        civil rights, which access is inherently guaranteed by Article

        6 para. 1 of the Convention;

 

      - whether the applicants had an effective remedy, pursuant to

        Article 13 of the Convention, in respect of their complaint of

        an unjustified interference with the right to respect for

        private life and home, ensured by Article 8 of the Convention.

 

 

B.      General considerations

 

45.     Article 13 of the Convention provides as follows:

 

        "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."

 

46.     This provision has been interpreted in the following way by

the European Court of Human Rights in the case of Silver and Others:

 

        "(a) where an individual has an arguable claim to be

        the victim of a violation of the rights set forth in the

        Convention, he should have a remedy before a national

        authority in order both to have his claim decided and,

        if appropriate, to obtain redress (see the ...  Klass and

        others judgment, Series A no. 28, p. 29, para. 64);

 

        (b)  the authority referred to in Article 13 may not

        necessarily be a judicial authority but, if it is not,

        its powers and the guarantees which it affords are

        relevant in determining whether the remedy before it is

        effective (ibid., p. 30, para. 67);

 

        (c)  although no single remedy may itself entirely satisfy

        the requirements of Article 13, the aggregate of remedies

        provided for under domestic law may do so (see, mutatis

        mutandis, ...  X v. the United Kingdom judgment, Series A

        no. 46, p. 26, para. 60 and the Van Droogenbroeck judgment

        of 24 June 1982, Series A no. 50, p. 32, para. 56);

 

        (d)  neither Article 13 nor the Convention in general lays

        down for the Contracting States any given manner for ensuring

        within their internal law the effective implementation of any

        of the provisions of the Convention - for example, by

        incorporating the Convention into domestic law (see the

        Swedish Engine Drivers' Union judgment of 6 February 1976,

        Series A no. 20, p. 18, para. 50).

 

        It follows from the last-mentioned principle that the

        application of Article 13 in a given case will depend

        upon the manner in which the Contracting State concerned

        has chosen to discharge its obligation under Article 1

        directly to secure to anyone within its jurisdiction the

        rights and freedoms set out in section I (see ...  Ireland

        v. the United Kingdom judgment, Series A no. 25, p. 91,

        para. 239)."

        (Eur.  Court H.R., Silver and Others judgment of 25 March

        1983, Series A no. 61, p. 42, para. 113)

 

47.     In the present case the Commission has declared inadmissible

as being manifestly ill-founded the applicants' claims under Articles

6 and 8 of the Convention and Article 1 of Protocol No. 1, but

declared admissible their complaint of an absence of any effective

domestic remedy for these claims pursuant to Article 13 of the

Convention.  The European Court of Human Rights in the case of Boyle

and Rice considered the relationship between a complaint which is

manifestly ill-founded, within the meaning of Article 27 para. 2 of

the Convention, and the notion of an arguable claim for the purposes

of Article 13 of the Convention as follows:

 

        "Notwithstanding the terms of Article 13 read literally, the

        existence of an actual breach of another provision of the

        Convention (a 'substantive' provision) is not a prerequisite

        for the application of the Article (see the Klass and Others

        judgment of 6 September 1978, Series A no. 28, p. 29, para.

        64).  Article 13 guarantees the availability of a remedy at

        national level to enforce - and hence to allege non-compliance

        with - the substance of the Convention rights and freedoms

        in whatever form they may happen to be secured in the domestic

        legal order (see the Lithgow and Others judgment of 8 July

        1986, Series A no. 102, p. 74, para. 205, and the authorities

        cited there).

 

        However, Article 13 cannot reasonably be interpreted so as to

        require a remedy in domestic law in respect of any supposed

        grievance under the Convention that an individual may have,

        no matter how unmeritorious his complaint may be:  the

        grievance must be an arguable one in terms of the Convention

        (see, as the most recent authority, the Leander judgment of

        26 March 1987, Series A no. 116, p. 29, para. 77 (a)) ...

 

        As the Court pointed out in its Airey judgment of 9 October

        1979, rejection of a complaint as 'manifestly ill-founded'

        amounts to a decision that 'there is not even a prima facie

        case against the respondent State' (Series A no. 32, p. 10,

        para. 18).  On the ordinary meaning of the words, it is

        difficult to conceive how a claim that is 'manifestly

        ill-founded' can nevertheless be 'arguable', and vice versa.

 

        This does not mean, however, that the Court must hold a

        claim to be excluded from the operation of Article 13 if

        the Commission has previously declared it manifestly

        ill-founded under the substantive Article.  The Commission's

        decision declaring an application admissible determines the

        scope of the case brought before the Court (see the Ireland

        v. the United Kingdom judgment of 18 January 1978, Series A

        no. 25, p. 63, para. 157).  The Court is precluded from

        reviewing on their merits under the relevant Article the

        complaints rejected as manifestly ill-founded, but empowered

        to entertain those complaints which the Commission has

        declared admissible and which have been duly referred to

        it.  The Court is thus competent to take cognisance of all

        questions of fact and of law arising in the context of the

        complaints before it under Article 13 (ibid.), including the

        arguability or not of the claims of violation of the

        substantive provisions.  In this connection, the Commission's

        decision on the admissibility of the underlying claims and

        the reasoning therein, whilst not being decisive, provide

        significant pointers as to the arguable character of the

        claims for the purposes of Article 13.

 

        The Court does not think that it should give an abstract

        definition of the notion of arguability.  Rather it must

        be determined, in the light of the particular facts and

        the nature of the legal issue or issues raised, whether

        each individual claim of violation forming the basis of

        a complaint under Article 13 was arguable and, if so,

        whether the requirements of Article 13 were met in

        relation thereto."

        (Eur.  Court H.R., Boyle and Rice judgment of 27 April 1988

        paras. 52-55).

 

 

C.      The present case

 

48.     The applicants submit that they have arguable claims of

breaches of Articles 6 and 8 of the Convention and, originally,

Article 1 of Protocol No. 1 to the Convention.  From this flows their

contention that they have no effective domestic remedies, pursuant to

Article 13 of the Convention, for the determination of these claims.

 

49.     The Government reply, inter alia, that in view of the

Commission's Decisions on Admissibility rejecting the applicants'

substantive complaints as manifestly ill-founded, within the meaning

of Article 27 para. 2 of the Convention, the applicants do not have

arguable claims under Articles 6 and 8 of the Convention and Article 1

of Protocol No. 1.  Hence no violation of Article 13 of the Convention

is disclosed.

 

50.     The Commission considers that the question whether a claim is

"arguable" must be determined in the light of the particular facts and

the nature of the legal issues raised (see last paragraph of citation

at para. 47 above).

 

     a) Article 13 of the Convention as regards the claim

        under Article 1 of Protocol No. 1

 

51.     The Commission first notes that since it declared the

applicants' Article 13 complaint admissible the applicants no longer

maintain in their submissions on the merits that they have an arguable

claim under Article 1 of Protocol No. 1 to the Convention which would

require an effective domestic remedy.  It also notes that in the

present case there was no evidence that the value of the applicants'

property has been substantially diminished or that their property has

been rendered unsaleable by aircraft noise.  In the absence of any

interference with the applicants' property rights the Commission

declared inadmissible as being manifestly ill-founded the applicants'

complaints under Article 1 of Protocol No. 1.  In these circumstances,

the Commission is of the opinion that the applicants do not have an

arguable claim under this provision.  Consequently they are not

entitled to an effective domestic remedy under Article 13 of the

Convention in respect of their original allegations under Article 1 of

Protocol No. 1.

 

        Conclusion

 

52.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 of the Convention in relation to the

applicants' claim under Article 1 of Protocol No. 1 to the Convention.

 

     b) Article 13 of the Convention as regards the claim

        under Article 6 para. 1

 

53.     The Commission refers to its Decisions on Admissibility in the

applicants' case in which it found that the applicants had no civil

right to compensation under English law for unreasonable noise

nuisance caused by aircraft, other than that caused by aircraft flying

in breach of aviation regulations.  It also found that the applicants

had not been denied the right of access to a court in the

determination of their civil rights, a right implicitly guaranteed by

Article 6 para. 1 of the Convention.  Accordingly it declared the

applicants' complaint of a breach of this provision manifestly

ill-founded within the meaning of Article 27 para. 2 of the

Convention.

 

54.     Insofar as the applicants are still contending in their

submissions on the merits that they have been denied access to court

in the determination of their civil rights concerning noise nuisance,

contrary to Article 6 para. 1 of the Convention, and that this also

raises an issue of an effective remedy under Article 13, the

Commission agrees with the Government's view (see para. 40 above) that

no separate issue arises under the latter provision, whose

requirements are less strict and absorbed by the former, the lex

specialis in the matter (cf.  Eur.  Court H.R., Silver and Others

judgment of 25 March 1983, Series A no. 61, para. 110).  Insofar as

the applicants' submissions may be read as a claim to a general right

to a court in all circumstances, a denial of which would allegedly

require an effective domestic remedy, this claim has no arguable basis

under any substantive provision of the Convention.  Accordingly

Article 13 is not applicable to a claim of the latter kind.  Finally,

insofar as the applicants apparently complain of the compatibility

with the Convention of section 76 of the Civil Aviation Act 1982, the

 

Commission recalls its constant case-law, confirmed by the Court, that

Article 13 of the Convention does not go so far as to guarantee a

remedy allowing a Contracting State's legislation to be challenged as

such (cf.  Eur.  Court H.R., James and Others judgment of 21 February

1986, Series A No. 98, p. 47, para. 85).

 

        Conclusion

 

55.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 of the Convention in relation to the

applicants' claim under Article 6 para. 1 of the Convention.

 

     c) Article 13 of the Convention as regards the claim

        under Article 8

 

    aa) The first applicant

 

56.     The Commission finds that the first applicant, Mr.  Powell, has

no arguable claim of a breach of Article 8 of the Convention.  It

notes that his home, along with the homes of half a million other

people, is in an area of low aircraft noise nuisance.  His house in

Esher is situated several miles from Heathrow Airport, just within the

35 NNI contour.  For this reason it was not clearly established that

there had been an interference with his right to respect for private

life or home within the meaning of Article 8 para. 1 of the

Convention.  However the Commission recalls that, in its Decision on

Admissibility in his case, it left the question of interference open,

finding ample justification for any possible limitation on this right

in the second paragraph of Article 8 for the economic well-being of

the country.  Hence the Commission declared this aspect of Mr.

Powell's case manifestly ill-founded.  In these circumstances the

Commission is of the opinion that the first applicant does not have an

arguable claim under Article 8 of the Convention.  Consequently he is

not entitled to an effective domestic remedy under Article 13 for his

allegations under the former provision.

 

        Conclusion

 

57.     The Commission concludes, by a vote of 15 to 1, that there has

been no violation of Article 13 of the Convention in relation to the

first applicant's claim under Article 8 of the Convention.

 

    bb) The second applicant

 

58.     The Commission finds that the second applicant, Mr.  Rayner,

does have an arguable claim of a breach of Article 8 of the

Convention.  It notes that his home and farm, which obliges him to be

outdoors much of his time, is one and one third miles from, and in the

direct line of one of Heathrow Airport's busy runways.  This area is

considered to be a high noise nuisance zone, being within the 60 NNI

contour area.  60 NNI signifies a very much greater noise level than

that experienced by residents in the first applicant's 35 NNI contour

area, given the logarithmic element of the Noise and Number Index (see

para. 19 above).  This nuisance is recognised by the State which, for

example, prohibits any further development in this area and the

Government concede that only about 1500 people around Heathrow Airport

experience a noise exposure equal to or more than that of the second

applicant.  Mr.  Rayner acquired his home before Heathrow Airport was

greatly expanded with the resultant major increase in aircraft

 

traffic.  Whilst he has no desire to move away from the area he has

good reason, in the Commission's opinion, to complain of and seek

redress for the deterioration of the noise climate in his home

environment.

 

59.     The Commission declared Mr.  Rayner's Article 8 complaint

manifestly ill-founded, because, on balance, the clear interference

with his private life and home was considered necessary in a

democratic society for the economic well-being of the country.  It is

implicit in the Commission's constant case-law that the term

"manifestly ill-founded" under Article 27 para. 2 of the Convention

extends further than the literal meaning of the word "manifestly"

would suggest at first reading.  In certain cases, where the

Commission considers at an early stage in the proceedings that a prima

facie issue arises, it seeks the observations of the parties on

admissibility and merits.  The Commission may then proceed to a full

examination of the facts and issues of a case, but nevertheless

finally reject the applicant's substantive claims as manifestly

ill-founded notwithstanding their "arguable" character.  In such cases

the rejection of a claim under this head of inadmissibility amounts to

the following finding: after full information has been provided by

both parties, without the need of further formal investigation, it has

now become manifest that the claim of a breach of the Convention is

unfounded.  Mr.  Rayner's substantive claim under Article 8 of the

Convention was such a case.  The careful consideration which had to be

given to this claim and the facts which gave rise to it lead the

Commission to the conclusion that it is an "arguable claim" for the

purposes of Article 13 of the Convention.

 

60.     The next question to be determined is whether the second

applicant has an effective remedy under Article 13 of the Convention

to redress his Article 8 claim.  The applicant submits that he has

not, whereas the Government contend that there is an aggregate of

satisfactory remedies available for aircraft noise nuisance: a civil

action in nuisance against aircraft operators who fail to abide by

flight regulations, a claim for compensation under the Land

Compensation Act 1973, sound insulation grants and State imposition

and enforcement of aircraft noise controls.

 

61.     The Commission notes that no civil suit lies in nuisance for

the noise annoyance caused by aircraft flying in accordance with

aviation regulations even though that annoyance may be generally

recognised as high.  Moreover for those like Mr.  Rayner who acquired

property before a public utility, such as Heathrow Airport, was

expanded and used to maximum capacity, no right to compensation under

the Land Compensation Act 1973 is available.  Sound insulation is not

wholly effective for people living within the high noise, 60 NNI

contour, like Mr.  Rayner, and it seems that despite the noise controls

imposed by the Government a high level of aircraft noise is still to

be expected.  In the particular circumstances of this case, the

Commission is of the opinion that none of these remedies could provide

adequate redress for the claim of Mr.  Rayner under Article 8 of the

Convention.  It finds, therefore, that the second applicant did not

have an effective remedy within the meaning of Article 13 of the

Convention.

 

        Conclusion

 

62.     The Commission concludes, by a vote of 12 to 4, that there has

been a violation of Article 13 of the Convention in relation to the

second applicant's claim under Article 8 of the Convention.

 

 

D.      Recapitulation

 

63.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 of the Convention in relation to the

applicants' claim under Article 1 of Protocol No. 1 to the Convention

(para. 52 above).

 

64.     The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 of the Convention in relation to the

applicants' claim under Article 6 para. 1 of the Convention (para. 55

above).

 

65.     The Commission concludes, by a vote of 15 to 1, that there has

been no violation of Article 13 of the Convention in relation to the

first applicant's claim under Article 8 of the Convention (para. 57

above).

 

66.     The Commission concludes, by a vote of 12 to 4, that there has

been a violation of Article 13 of the Convention in relation to the

second applicant's claim under Article 8 of the Convention (para. 62

above).

 

 

 

 

  Secretary to the Commission        Acting President of the Commission

 

 

 

 

         (H.C. KRÜGER)                         (J.A. FROWEIN)

 

APPENDIX I

 

 

 

History of the proceedings before the Commission

 

 

Date                    Item

 

----------------------------------------------------------------

 

31 December 1980        Introduction of application

 

23 March 1981           Registration of application

 

 

Examination of admissibility

 

20 September 1982       Rapporteur's request for information

                        from applicants

 

11 October and          Submission of information by applicants

30 November 1982

 

15 March 1984           Commission's decision to give notice of

                        the application to the respondent Government

                        and to invite them to submit written

                        observations on admissibility and merits

 

21 September 1984       Submission of Government's observations

 

18 February 1985        Submission of applicants' observations

                        in reply

 

13 May 1985             Commission's deliberations and decision to

                        deal separately with the applicants and

                        adjourn consideration of MM. Powell and

                        Rayner's circumstances

 

16 October 1985         Commission's hearing on admissibility and

                        merits in the case of the third applicant,

                        Mr.  Baggs.  Decision to declare his case

                        partially admissible

 

17 October 1985         Commission's decision to declare Mr.  Powell's

                        case partially admissible and to invite the

                        parties to provide further information about

                        Mr.  Rayner's case

 

27 November 1985,       Submission by the Government of information

29 January 1986         and further observations in Mr.  Rayner's

and 2 July 1986         case

 

9 December 1985,        Submission of Mr.  Rayner's comments in reply

7 January 1986,

22 and 24 April 1986

 

16 July 1986            Commission's decision to declare Mr.  Rayner's

                        case partially admissible

APPENDIX I

 

 

Date                    Item

 

----------------------------------------------------------------

 

 

Examination of the merits

 

29 July 1986            Submission by Government of further

                        observations in Mr.  Powell's case

 

1 September 1986        Submission by MM. Powell and Rayner of

and 9 March 1987        comments in reply

 

8 July 1987             Commission's adoption of friendly settlement,

                        Article 30 Report, in Mr.  Baggs' case

 

10 October 1987         Commission's deliberations and decision to

                        adjourn MM. Powell and Rayner's case pending

                        the Court's judgment in Boyle and Rice v.

                        the United Kingdom

 

27 April 1988           Court's judgment in the Boyle and Rice

                        case

 

18 May 1988             Applicants invited by the Secretary to the

                        Commission to submit comments on their case

                        in relation to this judgment

 

17 August and           Submission of applicants' comments on the

28 October 1988         Boyle and Rice judgment

 

4 October 1988          Submission by Government of their comments

                        on this judgment

 

18 January 1989         Commission's deliberations on the merits

                        and final votes

 

19 January 1989         Adoption of text of present Report

 

 

 

 

Full & Egal Universal Law Academy