AS TO THE ADMISSIBILITY OF
Application no. 39561/98
by Michael ASHWORTH and Others
against the United Kingdom
The European Court of Human Rights (Second Section), sitting on 20 January 2004 as a Chamber composed of
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mr J. Casadevall,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mrs E. Fura-Sandström, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 8 December 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants are British citizens, born in 1924, 1932, 1925, 1955 and 1945 respectively. They live near Denham aerodrome, Buckinghamshire. They were represented before the Court by Mr Richard Buxton, a lawyer practising in Cambridge, England. The Government were represented by their agent, Mr Huw Llewellyn, of the Foreign and Commonwealth Office, London.
A. The particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Denham aerodrome is a privately owned and operated aerodrome, most of which lies within the London Control Zone. 110 full-time and 45 part-time employees, of various companies, work there. Current activity at Denham comprises flights by fixed wing aircraft and helicopters, maintenance and testing, pilot training and aerobatics. The most common aircraft are the Piper 23 and Cessna 152, which are four-seater light propeller aircraft with fixed undercarriages. The most common helicopters are Robinson 22s.
An Air Traffic Zone (ATZ) is set aside exclusively for the safe operation of aircraft using the aerodrome. It extends for a radius of 2 nautical miles around the aerodrome, and it is only within the ATZ that the aerodrome operator has supervision of the airspace and the aircraft within it. Pilots must advise the aerodrome of their entry into the ATZ. Because of its proximity to Northolt and Heathrow airports, the circuit height at Denham is limited to 750 feet.
The aerodrome currently has two runways, a 779m asphalt runway which runs north-east/south-west, and a 564m grass runway which runs north-west/south-east.
Helicopters have used the aerodrome since 1955. Most (some 95%) of the large helicopter activities are commercial, and include training, maintenance and testing.
Aircraft flights are divided roughly equally between commercial and leisure purposes; many flights in each category involve pilot training, with basic training most often carried out in fine weather.
Aerobatic flying takes place on average once a fortnight during the summer.
On 13 June 1996, the applicants’ lawyer wrote to the Secretary of State for Aviation and Shipping on behalf of the Denham Airfield Environment Federation (“DAEF”), an association with about 1,000 members. The lawyer formally requested that the Minister should exercise the powers given to him under Section 5 of the Civil Aviation Act 1982 (“the 1982 Act”) to specify Denham Aerodrome for the purposes of that section, and then have the Civil Aviation Authority re-licence the airfield taking into consideration the need to minimise so far as reasonably practicable any adverse effects on the environment and disturbance to the public.
On 7 August 1997, Mr Grindrod of the Aviation Environmental Division of the Department of Environment, Transport and the Regions (“DETR”) replied to the lawyer that he was not satisfied that specification or designation of Denham Aerodrome under either Section 5 or Section 80 (for the purposes of Section 78) of the 1982 Act would be appropriate. He indicated that in reaching this view he had taken into account the aerodrome’s procedures for noise mitigation including their implementation, and he indicated that the aerodrome had also been visited by officers from the Aviation Environmental Division of the DETR.
Mr Grindrod further stated that he was not persuaded that there was significant or serious weakness in the environmental policies of the aerodrome or in their implementation. He concluded that the disturbance from aircraft at the aerodrome was not such as to justify specification under Section 5 of the 1982 Act. Mr Grindrod indicated that designation of Denham aerodrome under Section 80 of the 1982 Act for the purposes of Section 78 would not accord with Ministers’ general policy that noise issues should so far as possible be resolved at local level. He stated that, given that he had seen no evidence to persuade him that Denham aerodrome was not being managed in an environmentally responsible manner, he did not consider that there was evidence of particular circumstances at Denham such as would justify the Secretary of State intervening to stipulate noise mitigation measures there as an exception to this general policy.
B. The applicants’ individual positions
Mr and Mrs Ashworth: Mr and Mrs Ashworth moved to the current address in Denham, Buckinghamshire, in 1970. Mr Ashworth died on 4 March 2003.
The Ashworths’ house is approximately 115 metres from the airfield perimeter fence, and the end of their garden is approximately 53 metres from the airfield. The part of the airfield which is closest to the Ashworths’ property was, until 1997, the area where most of the airfield-based helicopter activity, and all of the helicopter testing, including compass testing, took place. Compass testing involves a helicopter hovering a few feet above the ground for 20 to 30 minutes. It was not unusual for a single helicopter to be operating continuously within the area of the airfield closest to the Ashworths’ property for up to an hour. Occasionally, more than one helicopter is involved simultaneously.
Mr and Mrs Ashworth found that the noise generated by the operation of the airfield at Denham was not merely intrusive, but after a short time became absolutely intolerable. The applicants have submitted a report which includes the result of tests carried out by CST Environmental and Acoustic Consultants in which they recorded the noise levels in the garden of the Ashworths’ house from 16 to 22 October 1996. The report indicates that mid-morning background noise levels without aviation activity are between 41 to 43 dB(A), which is a level typically found in a semi-rural location such as the area in which the property is located. It notes that it is generally accepted that noise excursions which give an LAeq reading of 10dB(A) or more above background may generate justifiable complaints, and states that this situation was frequently recorded at the Ashworths’ house. Further, the report states that individual LA max. levels generated by both fixed-wing and helicopter aircraft were unexpectedly high, with typical LA max. values of 64 to 67 dB(A) for aircraft and helicopters were recorded, with some excursions in excess of 75 dB(A). Finally, the report indicates that the audio recording revealed that helicopter activities lasted for several minutes at a time, compared with fixed-wing flights which usually passed overhead in under one minute.
The applicants contend that the level of noise in the summer is much greater than that recorded in October 1996, which is the end of the season. Nevertheless, they contend that the results of the tests indicate that the level of noise experienced by the Ashworths is such as to amount to a nuisance, and that it is only by virtue of the operation of the relevant legislation, and in particular Section 76(1) of the 1982 Act, that it is not actionable.
It is estimated that the value of the Ashworths’ property has been reduced by about a third as a result of the existence of the airfield and activity at current levels.
Mr Vogel: Mr Vogel lives in Gerrards Cross, Buckinghamshire. He has lived at his present address since 1960. He lives with his wife.
Mr Vogel’s property is 3 km from Denham Aerodrome. He estimates that on average, one aircraft passes his property about every 40 seconds. The maximum height of the aircraft is 225 metres due to the proximity of Northolt aerodrome. If the wind is blowing towards Mr Vogel’s property, he finds the noise from take-off makes conversation in the garden, and therefore social use of the garden, impossible.
Aircraft on circuit usually pass slightly to the airfield side of Mr Vogel’s property, causing a serious and repetitive intrusion into their home and family life.
Mrs Rawson: Mrs Rawson has lived with her husband at her present address in Harefield, Middlesex, since 1997.
Mrs Rawson’s property is about 2 miles to the east of Denham Aerodrome. She complains that the noise from the aircraft engines is very intrusive and intimidating. Mrs Rawson and her husband noted the frequency of flights on various days between 13 July and 25 August 1999. Their notes indicate that they were often able to read the numbers on the aircraft with the naked eye. The notes show that during certain periods at weekends the frequency of flights close to the house reached approximately one every minute to two-and-a-half minutes. Mrs Rawson states that during the week, flights are less frequent. She complains that the aircraft fly low over her house and garden, and that they do not keep to the circuit prescribed by the aerodrome when taking off or landing, or practising approaches to landing.
Mrs Rawson works from home, and she is therefore adversely affected by the noise from the airfield during the week as well as at weekends.
Mr Holyoake: Mr Holyoake has lived with his wife and son at his present address in Gerrards Cross, Buckinghamshire, since 1997.
Mr Holyoake complains of “incredible” noise resulting from low flying aircraft completing circuits of four or five minutes’ duration on a regular basis. He states that often at weekends this results in an aircraft every one or two minutes flying over his house and garden, which creates an impossible situation outside the house and can be heard inside the house. The maximum height of the aircraft flying from Denham Aerodrome and the circuit which they may take is limited by the proximity of Northolt airfield. Aircraft flying from Denham often take a low flight path, which increases the noise at ground level. Mr Holyoake states that aircraft from Denham Aerodrome regularly fly well below 500 feet (150 metres) and sometimes at half this height. He complains that the position is exacerbated by the fact that aircraft use four large oak trees in the grounds of his house, which is positioned on the top of a hill, as markers when they come in to land, and therefore continuously take this route when landing. Helicopters use the same circuit, and fly at lower heights. Mr Holyoake states that the resultant high noise and resonance levels have caused earaches and headaches, particularly after regular exposure when circuits are carried out.
C. The Regulatory Framework
Section 35 of the Civil Aviation Act 1982 (the 1982 Act) provides for designation of aerodromes by the Secretary of State. Where an aerodrome has been designated under Section 35 (1), the management of the aerodrome is required to consult organisations representing the interests of local people (amongst others) “with respect to any matter concerning the management or administration of the aerodrome which affects their interest ...”. Guidelines for Airport Consultative Committees, published in 1987, state that the aim of consultation is “to provide an effective forum for the discussion of all matters concerning the development or operation of the aerodrome, which have an impact on ... people living and working in the surrounding area”, and to “provid[e] an opportunity to reconcile any differences of view that may arise, and [to resolve] difficulties through agreed voluntary action”.
Denham aerodrome has been designated under Section 35.
Sections 5 and 78/80 of the 1982 Act permit the imposition of specific noise and/or use control measures.
Where an aerodrome has been specified under Section 5, the Civil Aviation Authority is under a duty “to have regard to the need to minimise so far as reasonably practicable - (a) any adverse effects on the environment, and (b) any disturbance to the public, from noise, vibration, atmospheric pollution or any other cause attributable to the use of aircraft for the purpose of civil aviation”.
No aerodromes have been specified under Section 5, although the Secretary of State has indicated to Plymouth City Airport that he is “minded” to specify it.
Where the Secretary of State has designated aerodromes under Section 78 of the 1982 Act, the operator of the aerodrome is required to comply with requirements set out in the notice relating to noise and vibration connected with the taking off or landing of aircraft.
Only the major London airports (Heathrow, Gatwick and Stansted) have been designated under Section 78.
Section 79 of the 1982 Act permits the Secretary of State to make grants towards the cost of sound-proofing buildings near an aerodrome which has been designated under that section.
Section 76 of the 1982 Act excludes civil liability in trespass or nuisance in respect of flights of aircraft over property provided that the provisions of Air Navigation Orders have been complied with.
The Rules of the Air Regulations 1996 made under the Air Navigation (No. 2) Order 1995 apply to all pilots. They prohibit low flying (generally, flying below a height of 1500 feet (450 metres) above the highest fixed object within 600 metres of the aircraft or helicopter (Rule 5(1)(a)), or closer than 500 feet (150 metres) to any person, vessel, vehicle or structure: Rule 5(1)(e)). However, the prohibition in Rule 5(1)(e) does not apply to aircraft which are taking off or landing (Rule 5(2)(d)); nor does it apply to practising approaches to landing at aerodromes (Rule 5(4)(a)), as long as this is “confined to the airspace customarily used by aircraft when landing or taking off in accordance with normal aviation practice at the aerodrome concerned” (Rule 5(4)(b)).
The general planning legislation in the Town and Country Planning Act 1990 (as amended) is applicable to airports. Where planning consent is necessary, the local authority (in the first place) must determine the application in the light of Planning Policy Guidance issued by central Government. PPG24 relates to Planning and Noise. Certain operational developments are excluded by the Town and Country Planning (General Permitted Development) Order 1995 from the need for planning permission, although even in those cases the local authority must be consulted. For certain types of development, such as applications to construct airports with a basic runway length of 2100 metres or more, environmental impact assessments must be submitted (Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations (SI 1999/293).
In a Consultation Paper published in July 2000, the DETR asked for comments on a number of proposals connected with the control of aircraft noise, including proposals to give aerodromes power to establish noise control arrangements, and proposals to compel aerodromes to prepare noise amelioration schemes. The conclusions drawn from the consultation paper, together with procedures arising from a proposed EC Directive Com 2001 (695), will be included in, or published with, a White Paper which is expected to be published at the end of 2003.
3. Private regulatory
The current aerodrome rules at Denham date from December 1999, and are set out in a document entitled “Operations and Procedures”, and in the “Denham Aerodrome Rules”.
The circuit applied at Denham follows a rectangular path around the aerodrome measuring roughly 2 nm x 1 nm. The height of circuit flying is 1000 feet, which is lower than some aerodromes, but enables aircraft to fly a smaller circuit than if they had to fly higher. The circuit is designed to be as small as practically possible to avoid flying over sensitive residential areas. Only four aircraft are permitted to fly circuits at any one time.
In connection with engine failure practice (which involves throttling the engine back in the circuit and returning it to full power a few seconds later), the rules draw attention to the fact that pilots cannot be prosecuted for low flying whilst landing or taking off in according with normal aviation practice, but that they may commit an offence if they deliberately go nearer than 500 feet to a person or structure.
Runways are available for use between 8.00 am and 6.00 pm in winter, and 8.00 am and 8.00 pm in summer. Twin-engined aircraft are not permitted to carry out circuit training after 1.00 pm at weekends.
Helicopters are not allowed to carry out hover training or circuit training on Sundays or after 1.00 pm on Saturdays, and are restricted to 10 minutes hovering followed by a circuit.
The Government state that alleged breaches of the rules are investigated by the aerodrome management, and the pilot is asked to explain his or her actions. The disciplinary regime includes written warnings, fines, requests for further training to be undertaken, and banning from using the aerodrome. One pilot has been banned in the last five years.
The applicants complain under Article 8 § 1 of the Convention that the noise caused by low flying aircraft including aerobatic activity, and helicopters, particularly training and maintenance, amounts to an interference with their right to respect for their private and family lives, and their homes, and that it cannot be justified under Article 8 § 2 because Denham Aerodrome does not serve important national economic interests.
The applicants identify a legitimate aim which might be put forward in the case of a small, privately owned and operated aerodrome such as Denham, that of allowing “innocent passage” for aircraft across people’s property. They contend that a balance should be struck between this and the interference with the rights guaranteed under Article 8 § 1. They complain that the fact that a bar on actions for nuisance is imposed by the 1982 Act, and in particular by Section 76(1) thereof, that the bar applies regardless of the time of day or night when the noise is made, and regardless of the level or type of noise made, and that there are no effective alternative mechanisms in place to prevent noise nuisance, means that no balance has been struck, in breach of Article 8.
The applicants further contend that the fact that the 1982 Act prevents them from bringing an action in nuisance, together with the fact that there is no other remedy available to them for breach of Article 8, amounts to a violation of Article 13 of the Convention.
Finally, the applicants contend that the level of noise generated by Denham Aerodrome has serious potential effects on the value of their properties. The Ashworths contend that this is particularly so in their case, as the noise has become significantly worse since they purchased the house in 1970. The applicants contend that this amounts to a violation of Article 1 of Protocol No. 1.
1. The applicants allege a violation of Article 8 of the Convention in that their rights to respect for their homes and private lives are not met by the combination of the privately-generated noise and the Government’s failure more closely to regulate the noise.
The first applicant died on 4 March 2003. Given that Mr Ashworth’s and Mrs Ashworth’s complaints are identical, the Court finds that Mrs Ashworth may pursue Mr Ashworth’s complaints.
Article 8 of the Convention provides, so far as relevant, as follows:
“1. Everyone has the right to respect for his private and family life, his home ....
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government note that almost all operations at Denham aerodrome are by private organisations and individuals, but accept that they are under an obligation to take “reasonable and appropriate” measures to secure the applicants’ Article 8 rights. They contend that in striking a fair balance a wide margin of appreciation should be allowed to them. They consider that the present case does not attain the threshold level at which consideration of broader fair balance and Article 8 § 2 issues becomes necessary. In any event, they consider that a fair balance was struck as regards the applicants: the policy whereby local aerodrome issues should be resolved locally, with ultimate power to regulate resting with the Government and the Civil Aviation Authority (CAA) subject to the supervision of the courts, provides a suitable framework for local aviation matters. They point to the various legislative provisions which enable regulation by Government, and to the way in which that regulatory regime is operated at Denham. The Government note that, to the extent that the applicants are complaining about flights which were unlawful, Section 76 of the 1982 Act would not have operated as a bar to an action in trespass or nuisance, and the applicants have not exhausted domestic remedies. They also note that the applicants did not challenge the refusal to specify Denham under Section 5 of the 1982 Act. In connection with the Court’s judgment in the case Hatton v. the United Kingdom (see below), the Government add that the scale of noise intrusions is considerably greater at Heathrow than at the applicants’ homes, and that the present applicants’ sleep has not been affected.
The applicants contend that the Government have not struck a fair balance. In particular, they assert that the leisure flying at Denham cannot be used to justify the nuisance inflicted on local residents, that the legal regime does nothing to ensure a fair balance (in particular that the planning consent system does not take into account noise nuisance), that the removal of the possibility to sue in trespass or nuisance upsets what would otherwise be the balance between flyers and residents, and that the various consultative mechanisms have no “teeth”. As to exhaustion of remedies, the applicants state that to pursue individual violations of the Rules of the Air Regulations, even if possible, would not provide an answer to the complaint, which is about the cumulative effect of aircraft flying. As to the absence of a challenge to the Section 5 refusal, the applicants consider that the refusal would have been unchallengeable in the domestic courts. In connection with the Hatton v. the United Kingdom judgment, the applicants add that the interests of the “community as a whole” comprise a small group of private and commercial interests, and are very much more limited in the present case than in the case of Hatton. Given that there has never been a case in which the provisions of the Civil Aviation Act 1982 have been applied to an aerodrome such as Denham, they consider that little weight should be attached to the existence of those provisions. The applicants also express doubt as to the way in which the Government have kept the issue of noise at Denham under review.
The Court recalls that in Hatton v. the United Kingdom [GC] no. 36022/997, judgment of 8 July 2003, it set out the approach to be applied in environmental cases under the Convention:
“96. Article 8 protects the individual’s right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. Thus, in Powell and Rayner v. the United Kingdom, (judgment of 21 February 1990, Series A no. 172, § 40), where the applicants had complained about disturbance from daytime aircraft noise, the Court held that Article 8 was relevant, since “the quality of [each] applicant’s private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow Airport”. Similarly, in the López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, § 51, the Court held that Article 8 could include a right to protection from severe environmental pollution, since such a problem might “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”. In Guerra v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I), which, like López Ostra, concerned environmental pollution, the Court observed that “[the] direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable” (§ 57).
97. At the same time, the Court re-iterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, § 48). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation “available to the legislature in implementing social and economic policies should be a wide one”).
98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure properly to regulate private industry. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see the above-mentioned Powell and Rayner judgment, § 41 and the above-mentioned López Ostra judgment, § 51).”
It is clear that the noise disturbance complained of in the present case was not caused by State organs but emanated from the activities of private individuals. However, as noted above, the responsibility of the State may be engaged where an applicant is directly and seriously affected by noise or other pollution, even where the nuisance emanates from the activities of private individuals. The Court considers, and the Government do not contest, that the level of noise generated by flights at Denham is sufficient to render Article 8 of the Convention applicable.
The Hatton case involved a challenge to noise created by night flights which themselves were governed by a regulatory scheme set up by the Government in 1993. The present case, by contrast, involves a claim that the Government have failed adequately to regulate local leisure flying in that they have left regulation to the operators of Denham aerodrome, whose interests are not those of the applicants. The essential question posed is nevertheless the same, namely whether, having regard to the margin of appreciation afforded to the State, a fair balance may be said to have been struck between the competing interests at stake - in this case, the interests (including the economic interests) of those operating and using Denham aerodrome and the interests of those affected by the noise disturbance thereby created. The Court recalls in this regard its Hatton judgment to the effect that, while environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, it would not be appropriate for the Court to adopt a special approach to the protection of environmental human rights. Whilst the State is required to give due consideration to the particular interests respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation.
The Court notes at the outset that, as in the Hatton case and in contrast to the case of Lopez Ostra, there was no failure of compliance with the requirements of domestic law. The applicants do not claim that the national authorities, or those responsible for managing Denham aerodrome or the individual pilots violated any relevant regulations. Had they done so, remedies would have been available to the applicants in the domestic courts, including under Section 76 (1) of the Civil Aviation Act.
The Court observes that the policy of the Government in relation to local aerodromes such as Denham has been to leave issues concerning the operation of the aerodrome, including those relating to its use and to noise disturbance caused thereby, to be resolved locally between the various interests, with the ultimate power of regulation resting with the Government and the Civil Aviation Authority subject to the supervision of the courts. The Court finds such a policy to be acceptable in principle in terms of Article 8 of the Convention, provided that the legislative framework and the local regulations are shown to be such as to preserve a fair balance between the competing interests.
As to the general legislative framework, the Court finds that the Government have put in place a number of legislative and regulatory measures which are referred to above. In particular, Denham aerodrome has been designated under Section 35 of the 1982 Act, the consequence of which is to impose on the management of the aerodrome an obligation to consult organisations representing the interests of local people with respect to any matter concerning the management or administration of the aerodrome which affects their interests. If appropriate facilities are not afforded for consultation, it is open to the group or organisation concerned to bring court proceedings to require this to be done. Moreover, Section 5 of the 1982 Act empowers the Secretary of State to specify a particular aerodrome, and thereby to impose compulsory measures of control, should it appear that the regime in place at the aerodrome does not have adequate regard to the need to minimise any adverse effects on the environment and any disturbance to the public. In addition, the Rules of the Air Regulations 1996, made under the Air Navigation (No. 2) Order 1995, which apply to all pilots, prohibit low flying and flying within a specified proximity of any person, vehicle or structure and, in the event of non-compliance with such Regulations, an action may lie in nuisance and trespass.
As to the rules in effect at Denham aerodrome itself, which are currently set out in the document entitled “Operations and Procedures” and in the “Denham Aerodrome Rules”, the Court observes that they contain provisions governing such matters as the height of circuit flying, the number of aircraft permitted to fly circuits at any one time, the hours of use of the runways and the times at which helicopter hover and circuit training are permitted. The rules are enforced through a disciplinary regime which includes written warnings, fines and, in the case of persistent offenders, a ban on the use of the aerodrome.
The applicants contend that the legal regime in place did nothing to ensure a fair balance and that the removal of the possibility to sue in trespass or nuisance upsets what would otherwise be a balance between flyers and residents, the consultative mechanisms having no “teeth”. However, it is to be noted that the exclusion of liability in nuisance is not absolute, Section 76(1) of the 1982 Act applying only in respect of aircraft flying at a reasonable height and in accordance with the relevant regulatory provisions (see the above-mentioned Powell and Rayner v. the United Kingdom judgment, at § 44). Moreover, even if the consultation procedures do not appear to provide for a formal dispute resolution structure, the Court notes that it was open to the applicants to bring court proceedings if no proper consultation had taken place, or to pursue the proceedings to have the aerodrome specified, with a possible challenge by way of judicial review of a final decision if the applicants believed the final decision to be flawed.
The applicants further argue that the interests of “the community as a whole” comprise a small group of private and commercial interests and are much more limited than the economic and other interests at stake in the Hatton case. In this regard the Court would observe that, although some 50% of the flying which takes place at Denham aerodrome is leisure flying, it nevertheless has an economic element, a proportion of the employment created by the aerodrome being dependent on such flying. As the applicants have not put their case to any domestic courts, the Court is not able to rely on domestic findings in assessing the intensity or duration of the nuisance to which they are subjected. It is, however, clear that the impact of the flying, which is confined to the daylight hours and is further restricted at weekends, is markedly less serious than that of the night flights which were the subject of the Hatton case.
Further, as in the Hatton case, the Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individual’s ability to leave the area (see the Hatton judgment at § 127). It is true that the first applicants estimated that the value of their property has been reduced by about a third as a result of the existence of the airfield and activity at current levels. However, no evidence has been submitted to show the effect, if any, of the noise disturbance from the aerodrome on house prices in general or the value of the applicants’ properties in particular or to establish that there existed no realistic prospect of being able to move.
In these circumstances, the Court is unable to find that, in adopting the policy approach to the regulation of local aerodromes and thereby permitting the regulatory regime in effect at Denham aerodrome, the Government exceeded the margin appreciation afforded to them or failed to take appropriate measures to strike a fair balance and to secure the rights of the applicants under Article 8 of the Convention.
It follows that this part of the application must be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
2. The applicants, and in particular the Ashworths, submit that as a result of the noise nuisance, there are serious potential effects on the value of their properties. They rely on Article 1 of Protocol No. 1.
The Court recalls that in the case of Hatton (ibid., § 127), it noted that the Government’s claim that house prices had not been affected by night noise. The Court accepts that in certain circumstances property values may be affected by aircraft activity (see, for example, Dennis and Dennis v. the Ministry of Defence, judgment of 16 April 2003, in which the High Court found that the plaintiffs’ property had lost substantially in value because of military training flights). However, the applicants in the present case have not submitted any evidence that house prices in general or the value of their properties in particular have been adversely affected by flights at Denham.
The Court thus considers that the claim under Article 1 of Protocol No. 1 is not substantiated. It follow that this part of the application must be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
3. The applicants also allege a violation of Article 13 of the Convention. The Court recalls that a complaint may only be made under Article 13 in connection with a substantive claim which is "arguable" (see, for example, the above-mentioned Hatton judgment, § 137, with further references). The Court has found that the applicants’ complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 are manifestly ill-founded. It finds that those claims cannot be said to be "arguable" within the meaning of the Convention case-law.
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Michael O’Boyle Matti Pellonpää
ASHWORTH AND OTHERS v. THE UNITED KINGDOM DECISION
ASHWORTH AND OTHERS v. THE UNITED KINGDOM DECISION