GRAND CHAMBER JUDGMENT IN THE CASE OF
HATTON AND OTHERS v. THE UNITED KINGDOM
The European Court of Human Rights has today delivered at a public hearing
its judgment in the case of Hatton and Others v. the United Kingdom
(application no. 36022/97). The Court held
by twelve votes to five that there had been no violation of Article 8
(right
to respect for private and family life and home) of the European Convention
on Human Rights; and
by sixteen votes to one that there had been a violation of Article 13
(right
to an effective remedy).
The Court held, by fifteen votes to two, that the finding of a violation
constituted in itself sufficient just satisfaction for any damage sustained
by the applicants. Unanimously, it awarded the applicants 50,000 euros
for
costs and expenses.
1. Principal facts
The eight applicants, all British citizens, live or lived near Heathrow
Airport, London. They are Ruth Hatton, born in 1963 and living in East
Sheen; Peter Thake, born in 1965 and living in Hounslow; John Hartley,
born
in 1948 and living in Richmond; Philippa Edmunds, born in 1954 and living
in
East Twickenham; John Cavalla, born in 1925 who, from 1970 to 1996, lived
in
Isleworth; Jeffray Thomas, born in 1928 and living in Kew; Richard Bird,
born in 1933 and living in Windsor; and Tony Anderson, born in 1932 and
living in Touchen End.
Before October 1993 the noise caused by night flying at Heathrow had
been
controlled through restrictions on the total number of take-offs and
landings; but after that date, noise was regulated through a system of
noise
quotas, which assigned each aircraft type a "Quota Count" (QC);
the noisier
the aircraft the higher the QC. This allowed aircraft operators to select
a
greater number of quieter aeroplanes or fewer noisier aeroplanes, provided
the noise quota was not exceeded. The new scheme imposed these controls
strictly between 11.30 p.m. and 6 a.m. with more lenient "shoulder
periods"
allowed between 11 and 11.30 p.m. and between 6 and 7 a.m.
Following an application for judicial review brought by a number of local
authorities affected, the scheme was found to be contrary to a statutory
provision which required that a precise number of aircraft be specified,
as
opposed to a noise quota. The Government therefore included a limit on
the
number of aircraft movements allowed at night. A second judicial review
found that the Government’s consultation exercise concerning the
scheme had
been conducted unlawfully and in March and June 1995 the Government issued
further consultation papers. On 16 August 1995 the Secretary of State
for
Transport announced that the details of the new scheme would be as
previously announced. The decision was challenged unsuccessfully by the
local authorities.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights
on 6
May 1997 and transmitted to the Court on 1 November 1998. It was declared
admissible on 16 May 2000.
In its Chamber judgment in the case, delivered on 2 October 2001, the
Court
held, by five votes to two, that there had been a violation of Article
8 of
the Convention, and, by six votes to one, that there had been a violation
of
Article 13. Under Article 41 (just satisfaction) each applicant was awarded
4,000 pounds sterling (GBP) for non-pecuniary damage and GBP 70,000 for
costs and expenses.
On 19 December 2001 the Government requested that the case be referred
to
the Grand Chamber [fn] and on 27 March 2002 the panel of the Grand Chamber
accepted that request. A hearing was held on 13 November 2002.
Judgment was given by a Grand Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss), President,
Jean-Paul Costa (French),
Georg Ress (German),
Giovanni Bonello (Maltese),
Elisabeth Palm (Swedish),
Ireneu Cabral Barreto (Portuguese),
Riza Türmen (Turkish)
Viera Strážnická (Slovakian),
Volodymyr Butkevych (Ukrainian),
Boštjan Zupan?i? (Slovenian),
Nina Vaji? (Croatian),
Snejana Botoucharova (Bulgarian),
Anatoli Kovler (Russian),
Vladimiro Zagrebelsky (Italian),
Elisabeth Steiner (Austrian),
Stanislav Pavlovschi (Moldovan), judges,
Sir Brian Kerr, ad hoc judge,
and also Paul Mahoney, Registrar.
3. Summary of the judgment
Complaints
The applicants alleged that Government policy on night flights at Heathrow
airport gave rise to a violation of their rights under Article 8 of the
Convention and that they were denied an effective domestic remedy for
this
complaint, contrary to Article 13 of the Convention.
Decision of the Court
Article 8 of the Convention
In accordance with its supervisory function, the question before the
Court
was whether, in implementing the 1993 policy on night flights at Heathrow
airport, a fair balance had been struck between the competing interests
of
the individuals affected by the night noise and the community as a whole.
Under Article 8 § 2 of the Convention, restrictions on the right
to respect
for private and family life are permitted in the interests of the economic
well-being of the country and for the protection of the rights and freedoms
of others. It was therefore legitimate for the Government to have taken
into
consideration the economic interests of the airline operators and other
enterprises and the economic interests of the country as a whole.
In previous cases in which environmental issues had given rise to violations
of the Convention, the national authorities had failed to comply with
some
aspect of domestic law. In the present case, however, the policy on night
flights had been found to be compatible with domestic law. Environmental
protection had to be taken into account by Governments in acting within
their margin of appreciation and by the Court in its review of that margin,
but it would be inappropriate for the Court to adopt a special approach
to
environmental protection by referring to a special status of environmental
human rights.
The Court noted that the introduction of the 1993 scheme was a general
measure, rather than a particular one aimed specifically at the applicants.
The State therefore had to be left a wider choice as to the various ways
by
which it could fulfil its obligation under Article 8 to give due
consideration to the particular interests affected. The Court noted that
there were difficulties in establishing whether the 1993 scheme had actually
led to an increase in night noise and was unable to reach any firm
conclusions on that point. However, there was nothing to suggest that
the
authorities’ decision to introduce a scheme based on the quota-count
system
was as such incompatible with Article 8.
Regarding the economic interests which conflicted with the desirability
of
limiting or halting night flights, the Court considered it reasonable
to
assume that the night flights contributed at least to a certain extent
to
the general economy. It could be inferred from the studies commissioned
by
the Government on the economic value of night flights that there was a
link
between flight connections in general and night flights, and it could
readily be accepted that there was an economic interest in maintaining
a
full service to London from distant airports. It was very difficult to
draw
a clear line between the interests of the aviation industry and the economic
interests of the country as a whole. Airlines were subject to substantial
limitations on their freedom to operate, however, including the night
restrictions which applied at Heathrow. The 1993 scheme had subsequently
been modified, moreover, to restrict operators further.
A further relevant factor in assessing whether a fair balance had been
struck was the availability of measures to mitigate the effects of aircraft
noise generally. The applicants did not contest that the house prices
in the
relevant areas had not been adversely affected by the night noise. Since
only a limited number of people had been adversely affected by the scheme
(2
to 3% according to a 1992 sleep study), the fact that they could move
elsewhere without financial loss was significant in assessing its overall
reasonableness.
With regard to the procedural aspect of the case, the Government had
consistently monitored the situation and the 1993 scheme had been preceded
by a series of investigations and studies carried out from as early as
1962.
The new measures introduced under the scheme had been announced to the
public by way of a consultation paper published in January 1995. The
applicants could have made any representations they felt appropriate and
challenged subsequent decisions if their representations had not been
taken
into account.
Accordingly, the Court found that the authorities had not overstepped
their
margin of appreciation by failing to strike a fair balance. It concluded
that there had been no violation of Article 8.
Article 13
The question to be addressed by the Court was whether the applicants
had had
a remedy at national level to enforce their Convention rights. It was
clear,
as noted by the Chamber, that the scope of review by the domestic courts
had
been limited at the material time to examining whether the authorities
had
acted irrationally, unlawfully or manifestly unreasonably (classic English
public-law concepts). Prior to the entry into force of the Human Rights
Act
1998, the courts had not been able to consider whether the claimed increase
in night flights represented a justifiable limitation on the right to
respect for the private and family lives or the homes of those who lived
near Heathrow Airport. The Court accordingly held that there had been
a
violation of Article 13
Judges Costa, Ress, Türmen, Zupan?i? and Steiner expressed a joint
dissenting opinion and Sir Brian Kerr expressed a dissenting opinion,
both
of which are annexed to the judgment.
***
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Fax: +00 33 (0)3 88 41 27 91
The European Court of Human Rights was set up in Strasbourg in 1959 to
deal
with alleged violations of the 1950 European Convention on Human Rights.
On
1 November 1998 a full-time Court was established, replacing the original
two-tier system of a part-time Commission and Court.
[fn] Under Article 43 of the European Convention on Human Rights, within
three months from the date of a Chamber judgment, any party to the case
may,
in exceptional cases, request that the case be referred to the 17-member
Grand Chamber of the Court. In that event, a panel of five judges considers
whether the case raises a serious question affecting the interpretation
or
application of the Convention or its Protocols, or a serious issue of
general importance, in which case the Grand Chamber will deliver a final
judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber
judgments become final on the expiry of the three-month period or earlier
if
the parties declare that they do not intend to make a request to refer.