APPLICATION/REQUÉTE N° 93111/8 1 Michael Anthony RA)'NER v/the UNITED KINGDOM Michael Anthony RAYNER c/ROYAUME-UN I IIEC'ISIOP of 16 July 1985 on thc admissibility of the application DI:CISION du 16 juillet 1986 sur la recevabilité de la requêt e ide 1 ôf the Convention : States which t-egulate air trqjfic and construct airports responsible under the Convention for rwise nuisance caused by such airports. icle 6, paragraph I of the ConvecRion : The Convention organs eannot racterise as "civil" a righ.twhich the national legal system does not recognise. fact that proceedings are bourul to fail because the right claitned does not exist s rtot amount to a denial of access to a court. icle 8 oi the C'onven6on-: A State must not only restrict its own direct inter nce with the exercise of rhe rights guaranteed by this provision but must also these rights. nsiderabi'e noise nuisance in the home is an interfereni•e with private-hfe : Coneraticros taken into accoutit in determining the proportionalitv of interference : ;ree cf public interest, level ofnttisance, pre-ezistence of the miisance in relation the person concerned taking up residence, benefits to him. ticle J, paragraph 1 of th,i First Protocol : This provision cannot be intetpreted guaranteeing a panicular qualiry of environment. 1 de la Convention : L'Etat qui réglemente le trafec aérien et eoristruit un t répond, aux termes de la Convention, de la nuisance sonore causée par ce t e 6, paragraphe 1, de la Comvention : Les organes de la Convention ne sauaitribuer la qualité de .droit civil» dun droit que le systènte juridique natio Le fait qu'une action en justice soit vouée à l'échec parce que le droit revendiqué! n'existe pas n'équivaut pas à un refus d'accès aux tribunaux .Article8delaConvention : L'Etat doit non seulement limiter ses ingérences di- ; rectes dans l'exercice des droits garantis par cette disposition mais aussi protéger ces droits. Une nuisance sonore considérable au domicile est une ingérence dans la vie privée . Eléments retenus pour juger de la proportionalité de l'ingérence : intensité du besoin public, intensité de la nuisance, antériorité de celle-ci par rapport à l'installationl de l'intéressé, avantages accordés à ce dernier. Article 1, paragraphe 1, du Protocole additionnel : Ne peut être interprété commzi garantissant une certaine qualité d'environnement . THE FACTS (français : voir p. 16)N 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 residentiaP 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 ParkJ Colnbrook . His home was acquired by his fam ily 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 occupie& 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 northem runway . ~. It is regularly overflown during the daytime and to a limited extént at night-time and falls within a 60 NNI contour* . Thevillage of Horton, where the applicant lived * NNI = Noise and Number Index, involving a combination of the number of aircraft heard above a certain noiselevel, and the average noise of aircraft to yield a single value . It appears that in the United Kingdom the officially advised Criteria for Ccntrol uf Development in arezs affected by aimrafi noise, expressed in NNI values, are for dwellings : - 1 60 NNI + above - refuse 40 - 50 NNI - uo major new developments . Infilling only with appropriate sound insulatio n 35 - 39 NNI - Pcrmission not to be refused on noise gmunds alone Il 1961, is situated; accornrdingto a map submitted by the applicant, within a NNI contour . The applicant has subtnitted a report on aircraft noise monitoring oy the ndon Scientific Services Noise and Vibi-ation Group indicating that the average se level at Poyle Park is 87 decibels (dB[A]) for landing aircraft and 86 dB[A] aircraft taking off. Furthermore the report states that the percentage figure of se level in excess of 90 d:B[A] s 29% with regard to landing aircraft and 38% h regard to aircraft taking; off . The figures on the average noise level submittedby the respondent Government 104I1 0 PNdB (perceived noise decibels) for landing aircraft and 93 .2=111 .3 dB for aircraft taking off. This corresponds, so the applicant points out, accordiug the stanclard PNdB - dB[A] conversion, to 91-97 dB[A] and 77 .8-98 .3 dB[A] The development andirnportance of Heathrow Airport The airport was transferred by the Air Ministny to the Civil Aviation athorir:ies on 1 January 1946 . In May 1952 the first jet only airline servi~e was augurated by BOAC . . Three terminals were built and opened in 1955, 1961 and 1968 . A fourth rminai was scheduled for completion in 1985 . Coâstmction of a fifthternvnal or third London Airport at Stansted is under consideration .Thenumberofpassengershandledbytheairportincreasedsteadily . In 1956 e airport handled three million passengers . In July 1963 the aiiport handled over ie miLion passengers during one month . In 1973 the airport handled 22 .4 milli,on issengers on international routes and 4 .4 million passengers on domestic routes . iere cvas a resulting inereasé in aircraft movement . For the six'months from ne 1946 until December 1946 themovements were 2,045 . In 1960 thémovements ere 146,501 . In the twelve monihs precv,ding 29 F'ébruary 19130 the movements ere 303,110 . The airport is currently used by over 70 airlines and serves over 10 destinations worldwide .Thereare,ae . appears from statistics which are submitted by the applicant and t conr.ested by the respondent Government, between 700 and 900 air movements the airport depending upen the type of day . Since 1970 Concorde has been in vice, bmL the total number of Concorde movements is very sriall, amouhting to 4 of all movements at Heathrow. ,.. - . ~ 1978 a helicopter linl : between Heathrow and with about twenty fligh :s per day . ~ . Gatwick has, tieen in Heathrow is ihe United Kingdom's leading port in the value of visible trade and 1983 handled cargo valued at £ 16 .6 billion. It plays a major part inearning Yor 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': Thé numtiér of people employed locally in servicing the industry is substantial. Heathrow is also a major contributor to the local government economy ,payingaproximately£9milioninlocalratésandrentstheyear1982/83 . C. Noise abatement measures Various measures have been taken to control the noise nuisance connected with the running of an airport . (a) Noise certificatio n Through international co-operation successive United Kingdom Government s have sought to make aircraft inherently quieter. The main forum for this activity i stheInternationalCivilAviationOrganisation(ICAO),originalythroughitsCommittee on Aircraft Noise (CAN) and now through its Committee on Aviation Environmental Protection (CAEP) . A series of standards has been developed leading 1 to the phasing out of aircraft onable to meet them . In the United Kingdom éffect is given to the standards by means of an Air Navigation (Noise Certification) Order . f In May 1979 new standards were developed to which the United Kingdom gave i effect by way-of.the present 1984 Order . It includes, inter alia : - changes to the requirement for subsonic jet aeroplanes ; . k - requirements for future production of existing.types of supersonic transports 4 and their derived versions . (b) Restrictions on night jet movements Specific steps have been taken by the United Kingdom Governinent since 1971 ~ to reduce progressively the number ofnight movements and thereby achieve a re- j duction 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, modem jet aircraft ! such as the A 300 B Airbus :and the L101 F- TriStar. No night flights bythe nois4er types o1' aircraft will be perrnitted from 1 April 1987 . (c; Noise monitoring Monitoring of aircraft noise on take-off was first carriecl out in the early 1960's. Since July 1974 the British Airports Authprit), (BAA) has carried out nonitoring on behalf of the Government using automatic equipmeut . This equipment consists of 13 Noise Monitoring Terminals ("NMT") linked to a central processing ând control unit . The systedn is self-checlking to ensure the validity of any noise ireading in excess of the noise limit for the period . The distribution of NMITs ensures ttiat all departing jet aircraft pass over or close to a rnonitoring point and the NMTs accordingly provide a reliable clteek of the mammum noise levels p!roduced by all aircraft .ThenoiselevelofajetaircrafttakingoffmustnotexceedIhéstâéutorylimits of 110 PNdB by day (07!00-23 .00 hours local timé) or 102 PNdB by night (23:00-07.(10 hours local time) at the nearestmonitor after takeoff. -, ' In the event of an infrin;gemem of the noise limit t he British Airports Ai¢hority informs the airline by letter and sends a copy to the llepartment of Transport . It is the responsibility of the airlirie operators to ensure that their aircraft are operated in such a inanner that the statutory limits are met. To achieve this they may have to pay special attention to take-off piocedures and/or adjust take-oPf weight to suit a }rarticular departuie route . . (d) Minimum noise routes. Such routes are designed to avoid as far as possible the major built up areas I thus to overfly the smallest number of people consistent with the réquiremeints safety and air traffic management . , (el Other operational measures In addition to the above principal measures other important measures are in ee aimed at redueing noise leveL;, such as special approach procedures, minimum ght requirements on take-off and approach to land, runway alternation, limitation air transport movements, prior approval to operate, noise related landing charges . (f) in,rulation grant scheme The first scheme for the soand insulation of dwellings was introducedPor hrow in Aprï . 1966. Therewere further schemes in 1972 and 1975,'the latter g iraproved in 1977 by inereasing the financial limits . The presentscheme came operation on 1 April 1980 by means of StatutoryInstrumettt 1980 No . 153 . A number of separate considerations entered into the formulation of the present me . In deteunining the area to be covered, the. Government considered Otat unt 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 i 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 s[ill 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 isthe exterior noise level below which, according to a Department of Trade Press Notice of 21 February 1978, curren tevidencesugeststhatheaveragepersonin 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 t the grant level. It was excluded from the 1980 Scheme for all classes of dwelling ,becausesuchtreatmentwasmadeavailablein1978bythe-Departmentofth e Environment's Home Insulation ScYteme . It was felt that insulation for energy saving purposes also provided suitable acoustic protection . D. The legal situatio n(a)Remedie s No specific remedies exist for individuals who might be affected by aircraft noise inthe 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 groun dwhich,havingregardtowind,weatherandalthecircumstancesofcase 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 gôes 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 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 h operations. - „ 10 (b) Compensation for nôise nuisance or purchase of affected property Compensation for loss of value of houses and land 7om airport noise is provided for by the Land Compensa :ion Act 1973 . To qualify for compensation an âpplicant 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 wotks first brought into use after 16 October 1969 . .For reasons of prinéiple and practice inte.n- ~sification of an existing use, i .e. fi'om works which had been first brought into nse before the relevant date for the purposes of the 1973 Act, was not made com- The BAA being a public statutory authority does not havepower to acquire ;rty near an airport unless it could show that the acquisition of theproperty was sary for the proper performance of its function . The applicant complains of tt,e frequency of excessive noise caused by landi,ng departing aircraft, the excessive noise levels themselves and the lack of any :quate'respite. lie also complains that British law, ûnlike that of other High Concting States, excludes'civil remedies for nuisance irrespective of the degcee : of loss damage sustained . He invokes Articles 6 para. 1, 8 para. 1 and 13 of thé Cmntion and Article L of Protocol No . I . LE LAVV The sipplieant complains of noise and vibrationnuisanee cimsed by ai:r traffic Heathrow Airport . In ad(lition he complains that Section 76 Civil Aviation Act AA) 1982 prevents him from raising his complaiut before a national coart . T+ie Commission has alreaiiy held in theArroncielle case (No . 7889/77, x. 15 .7.80, D.R. 19 p. 186)'tltat the 1Jnited Kingdom is answerable under the mvention with regard to a complaint on aircraft noise in the vicinity of British ports because it is a State body, namei}% the Brilish Airport :; Authority (BAA) iich s responsiàle for the planning and construction of civil airports . In addition traffic is regulated by legislation, the Civil Aviation Act (CAA) 1982 . The applicantcomplains of a continuing simation with regard to which, contéstably, ne specific remedv exists under British law . The applicant can, in ese circumstances, be eonsidered to have complied vvith theeonditiom of Arte 26 of the Convention . 11 The applicant first invokes Article 8 of the Convention . He submits that the noise nuisance complained of constitutes an interference with thè right to respect for his private life and for 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 withiegard to direct measures taken by the authorities against the privacy and/or home of an individual . r It may also cover indirect intrusions which are unavoidable consequences of 11 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 affecrthe 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 inthe given circumstances the level of noise ~ amounts to an interference with the above-mentioned rights guaranteed by Article 8 para. 1 . It therefore remains to be examined whether the interference is justified unde r paragraph 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 developingexternal 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 !truethatwhereaStateisalowedtorestrictrightsorfredomsguarantedbythe 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 . 12 Ir, has further to be noted that the applicant took up residence atPoyle'Park in 1961 while before he lived alittle further away from tlae airport andits northern runway, namely in the village of 13orton 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 therefoie have realised that hee did not choose a very peaceful envii-onment for his home. He has not alleged that at the time he had no reason to expect further expansion of air traffic inereasing the ncise level at his site, or that he had .no.other choice than to take up resid .nçe 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 distinguishedfroxn the case of theapplicant Baggs (1) who finished the conslruction of his home in 1950 . ., . Furthermore, the present case is distinguishable frcim the 13aggs case in so fa r as the applicant Plaggs is living witbin a 7 '2.5 NNI contour where the maximmm 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 logatithntic, which means tltat every increase of 10 represents a doubling of the loudnees . ~ fcccording to the applicant's own submissions an important nùmber of people live w Ithin the 6C NNI contour wtile uncontestedly only very few people areexposed to the noi,e levèi the applicant Bvggs has toéndure and which renders Me : Baggs' property practically unsaleable. As the C'onvention does not in principle gûarantee a righ^: to a peaceful environmen-:, noise nuisance for which a i3overnmént can, as in the present case, be held reaponsible, cannot be consideted to constitute an unreasonablc bu--den for the individuals concerned if ticy have the possibility of moving elsewhere without substantial dii'ficulties arid losses . The present upplicant 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 locally . demand for houses was sufficient to ensure rapid sake : Although the sale of his own property may, as he alleges ; encouniter ceitain difficulties there iu nothing'to show r:hét such difficclties, which are partly due to the fact that the applicant's propérty is used for farming, are insurmountabie. 'Phe Commission concludes that the cireumstanees 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 numberof 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 t o (1) See D.R . 44 p . 13 : 13 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 . 2. The applicanrhas further invoked Article I of Protocol No. 1 which guarantees the right to the peaceful enjoyment of possessions. This provision is mainly con' cerned with the arbitrary confiscation of property and does not, in principle ; guarantee a right to the peaceful enjoyment of possessions in apleasant environment.' It is true thataircraft noise nuisance of considerableimportance both as to level and frequency may seriously affect the value of real property or even render it unsaleablé and thus amount to a partial taking of property . However, the applicant has not sub! mitted any evidence showing that the value of his property was substantiallÿ diminished on the ground of aircraft noise so as to constitute a disproportionaté burden amounting to a partial taking of property necessitating payment of compen= sation . An examination by the Commission of this complaint does not thereforé disclose any appearance of a violation of Article I 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 . 3. The applicant has also alleged a violation of Article 6 of the Convention on thé 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 ati 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 Huma n 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 goveming 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 Lünnroth 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 o£ Article 6 para. 1 that a given privilege or interest which exists in a domestiç legal system is not classified or described as a`right' b y that system . However,', it is clear that the Convention organs could not create by way of interpretation' of Article 6 para . I a substantive right which has no legal basis whatsoever i n 14 die State concerned." (Comm. Report 8 .10.80, para. 150 ;see also No . 8282/79, Dec. 14.7 .80, D .R. 21 p. 109 ; Kaplan v . the United Kingdom, Comm. Report 17 .7 .80, paia. 134, D.R. 21 p. 5) Unlike in the cases so far considered by the Commission (see No . 7443/76, Dec . 10.12.76, D.R. 8 p. 216, No . 10096/82, Dec. 9.10.84 ; No.1(1475i83, Dec . 9.10.84, D .R. 39 p. 246) and the European Court of Human Rights (see Ashingdarie judginent of 28 May 1985, Series A no. 93) the provision in Section 76 CAA does not confer an immunity from liabilityin respect of actions of cettain .and distinct groups oP persons (such as soldier,s or mental health patients as in the cases cited) out excludes generally any action irt respect of trespass or nuisance caused by the flight of an aircraft at a reasonable height regardless of the s ;atus of the possible claimant . The Cammission eonsiders that the purpose and effect of Section 76 CAA is to esclnde generally any possible compensation claims for trespass and uuisance and nct just to lirait jurisdiction of civil courts with regard to certain classes of civil action. The applicant, theretore, cannot invoke under English lacv a substantive right to conipensation for the alleged noise nuisanee . The mere fact that eonsequently an action in respect of aircraft noise nuisance would be devoid of all prospects of success is not eqnivalent to depriving the applicant of the right of access to a court . 7'he Commssion also notes in this context that the applicant himself admitted that if Section 76 CAA did not aoply, to sue in nuisance one would have to prove unreasonable user. His general contention is, however, that despite the various noise abatentent measures taken by the competent authorities, his righ .ts as guaranteed by the Convention are violated on account of aircraft-noise nuisance . In tiiesecircumstances 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 . L folllows that this particular complaint does not disclose smy appearance of a violation of the rights and freedoms set out in the Convention and in particular in Article 6 para. 1. 7'he application is to this extent again manifestly ill-founded within the meaning of Article 27 para . 2.of the Convention. , . .4 . On the other hand the Comtnission considers Haa[ the applicant's complaint o f 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 conrplexity that their detennination must depend upon an examination on the merts . ' For these reasons, the. Commission DECLARES ADMISSIBLE, without prejudgîng,the merits of the case, the applicant's complaint that as regards aircraft noise he has -io effective remedy hefore a national autharity within the meaning of Article 13 of the Convention ; DECLARES INADMISSIBLE the remainder of ttie application_ 15