Airport noiseCase law and the balanced approach

Marc Martens

10 December 2007

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The right to a healthy environment and the European Court of Human Rights

Margin of discretion controlled by National and International Courts within broader legal framework (Directive 2002/30, 2002/49, 80/51).

The European Court of Human Rights recognises environment inidrectly as a human right mainly through Article 8 of the Convention on Human Rights:

“1 Everyone has the right to respect for his private and family life, his home and his correspondence.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and if necessary in a democratic society, in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.“

Current state of the Court’s case law limits the possibility of obtaining satisfaction for those who claim their rights have been violated.

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ECHR`s Case Law

Applicability of Article 8 to environmental airport nuisances (Arrondelle v UK (1980),Baggs v UK(1987))Powell and Rayner v UK (1990)

“the quality of the applicant’s private life and the scope for enjoying the amenities of his home have been adversely affected by the noise generated by aircraft using Heathrow Airport, however, the measure was not striking the balance”

López Ostra v Spain (1994)“severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.”

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ECHR Case law (2)

The inconsistency of the Case law : the Hatton case Hatton I (2001) and Hatton II v UK (2003)

Nightflights around Heathrow

Hatton IThe facts – Mrs Hatton and others

The regulatory framework in Heathrow –1993 Scheme (quota counts)

The claims – Violation of Article 8 (private life) and 11 (effective remedy) ECHR

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Hatton I

Article 8 may apply in environmental cases whether (I) the pollution is directly caused by the State or (ii) whether State responsibility arises from the failure to regulate private-sector activities properly.In both contexts :

regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole ;As the Court said in this case, the State enjoys a certain amount of appreciation, in other words; a level of discretion in determining the steps to be taken to ensure compliance with the Convention.

Minimum interference test - a proper investigation with the aim of finding the best possible solution which will strike the right balance should precede the relevant project2 dissenting opinions (on 7) – the margin of appreciation

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Hatton II

The decision in Hatton II relates to the subsidiary role of the Convention : National authorities are best placed to determine the most appropriate environmental policies and individual measures.

This does not mean that the authorities can make decisions only if comprehensive and ,measurable data is available in relation to each and every aspect of the matter to be decided.

12 judges in assent (with 5 judges in dissent) held that, in substance the authorities had not overstepped their margin of appreciation

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Conclusions of ECHR’s Case law

The States must assess the potential impact of airports on the environment and on the life of individuals living nearbyThe wide margin of appreciation of the States in making the balance between the conflicting interests (self-restraint of the Court) Higher Courts are reluctant to assess the appreciation made by the legislators because risk of breach of separation of powers. The protection of Article 8 is limited and the Court blows hot and cold The procedural assessment of the Court has dramatically decreased in intensity

since Hatton II. Later case law has confirmed this. In its substantial assessment in Hatton II, the Court does not give a special

status to environmental human rights, nor does it recognise that sleep disturbances are included in the nucleus of Art. 8 protection

The decisions depend on the circumstances of the caseCase law is likely to evolve…and the ECHR is not the only forum protecting individuals against environmental nuisances

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Thank you for listening