Přehled
Rozhodnutí
THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37664/04
by Lars and Astrid FÄGERSKIÖLD
against Sweden
The European Court of Human Rights (Third Section), sitting on 26 February 2008 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 22 October 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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 FACTS
The applicants, Mr Lars Fägerskiöld and Mrs Astrid Fägerskjöld, are Swedish nationals who were born in 1942 and live in Jönköping. They were represented before the Court by Mr H. Sundström, a lawyer practising in Ljungskile.
The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In the mid-1980s the applicants bought a property, Hästholmen 1:17, in the municipality of Ödeshög, in the County of Östergötland, for recreational purposes. They have their permanent residence, where they are formally registered, in Jönköping.
In 1991 and 1992 the municipality of Ödeshög granted building permits to erect two wind turbines on a property, Hästholmen 10:1, neighbouring the applicants’ property. These wind turbines measured 31.5 metres to the hub of the rotor blades, which had a diameter of 27 metres. The first wind turbine had a delivery of 225 kW (kilowatts) and was built approximately 430 metres from the applicants’ property while the second wind turbine had a delivery of 150 kW and was situated at a distance of roughly 620 metres from the applicants’ property. Apparently, these two wind turbines did not cause any nuisance to the applicants.
In April 1998 a third wind turbine was erected on Hästholmen 10:1, at a distance of 371 metres from the applicants’ property. This wind turbine measured 45 metres to the hub of the rotor blades, which had a diameter of 44 metres. Moreover, it had a delivery of 600 kW and was capable of producing approximately 1,100,000 kWh per year (which roughly corresponds to the energy needed to heat between 40 and 50 private households over a one-year period). The wind turbine was owned by the “Hästholmen Joint Wind Association” (Hästholmens Vindsamfällighets-föreningen), which consisted of 1,261 shares, of which the municipality owned 100 shares and several property owners in the area also owned some of the shares.
According to the applicants, the wind turbine emitted a constant, pulsating noise and, sometimes, light effects which they found very disturbing and intrusive. For these reasons and because they considered that the new wind turbine had been erected much too close to their property, and without them having been consulted in advance, they complained about it in a letter to the municipality.
It turned out that the municipality’s Environment Committee (miljötekniska nämnd) had already granted a building permit for the wind turbine, in November 1997. Before that decision, a geotechnical evaluation of the ground had been carried out and the Swedish Civil Aviation Administration (Luftfartsverket), the Swedish Armed Forces (Försvarsmakten) and the County Administrative Board (länsstyrelsen; hereinafter referred to as “the Board”) of Östergötland had been heard, as well as the owners of the two closest neighbouring properties (situated within 250 metres of the planned location of the wind turbine). None of those consulted had had any objections to a wind turbine being constructed on the property of Hästholmen 10:1. However, in its decision, the Environment Committee had stipulated that the exact location of the wind turbine should be agreed upon in consultation with the municipality’s building unit and the Board before construction began.
On 4 May 1998 the Environment Committee received a leasehold contract between the property owners of Hästholmen 10:1 and the Joint Wind Association from which it appeared that the wind turbine had been constructed about 65 metres north-west of the location which had been agreed upon and thus also closer to the inhabited area.
On 20 May 1998 the Environment Committee held a meeting, attended by the chairman of the Joint Wind Association, to discuss the situation relating to the wind turbine. It was agreed that the Joint Wind Association should submit a request to the Environment Committee for a change to the building permit so that it was valid for the wind turbine in its present location. The Committee would have to make a completely new assessment, where all property owners within a radius of 500 metres of the wind turbine should be heard, as should, again, the Swedish Civil Aviation Administration, the Swedish Armed Forces and the Board.
Consequently, the applicants and all other property owners, tenants and residents within a 500 metres radius of the wind turbine were invited to submit their comments on it.
Moreover, on 20 May 1998, the Vestasvind Svenska AB company (the builder of the wind turbine) carried out noise tests of the three wind turbines, together and separately, which were submitted to the Environment Committee but also presented to those, including the applicants, who attended a general meeting on 4 June 1998. According to the results of these tests, the noise levels in respect of the applicants’ property were calculated at 37.7 dB (decibels) from the new wind turbine alone and at 39.4 dB from all three wind turbines together. The tests were carried out in the evening when the wind speed was measured at eight metres per second.
On 23 June 1998 the Environment Committee granted a change to the building permit for the wind turbine so that it applied to the present location of the wind turbine. The Committee had observed that several of those heard on the matter had complained about the noise made by the wind turbine. However, it had also noted that, according to the noise tests carried out by the builder of the wind turbine, the noise levels did not exceed 40 dB, which was the recommended maximum level, at any house, except the two closest, where the owners had stated that they were not disturbed by the noise. Still, in order to try to minimise the nuisance perceived by a number of neighbours of the wind turbine, the Committee ordered that certain temporary measures be taken. Hence, the wind turbine should automatically stop if the wind did not exceed a speed of four metres per second and, during the summer months (June, July and August), the wind turbine’s rotor blades should be adjusted to a “less aggressive” angle to reduce the sound level. Moreover, all mechanical sound created by the wind turbine should be eliminated completely and an evaluation of these measures should be carried out no later than 31 October 1998 by the Environment Committee together with the neighbours concerned. Following this evaluation, which might include an impartial noise investigation of, inter alia, the applicants’ property, final advice and measures to be taken would be decided.
In its protocol from the deliberation, the Environment Committee noted that the final assessment of protective and precautionary measures and advice, according to environmental protection legislation, in relation to the wind turbine would be decided upon when the matter had been sufficiently examined. This decision could then be appealed against by any of the persons concerned.
On 28 October 1998 the evaluation meeting took place. The applicants were present as were several other neighbours and representatives for the Joint Wind Association and the Environment Committee. It turned out that the “mechanical noise” that some had complained of came from one of the smaller wind turbines, which had since been repaired so that such noise was no longer emitted. Moreover, the other measures had been implemented during the summer months but the neighbours, including the applicants, claimed that this had had no effect on the noise level.
The applicants appealed against the decision of 23 June 1998 to the Board and demanded that “all the building permits” be revoked and that the wind turbine be dismantled. They claimed that the wind turbine caused serious nuisance to them and that no real noise investigation had been carried out to establish the true level of the noise. They further submitted that they had not been given the opportunity to voice their opinion about the wind turbine before it had been constructed and that the municipality had not dealt with the case impartially since it owned a part of the wind turbine.
The Environment Committee submitted in reply that the Municipal Executive Board had some shares in the wind turbine but that those who were members of both the Executive Board and the Environment Committee had not participated in the Committee’s decision of 23 June 1998. It further stated that the decision had been taken in accordance with relevant legislation.
The Joint Wind Association, for its part, stated that it had kept the general public in the municipality informed about the planned construction of the wind turbine through brochures and advertisements in the local press. It further claimed that it was prepared to continue with the measures imposed the following summer too.
On 14 April 1999, after having visited the applicants’ property, the County Administrative Board rejected their appeal. It first noted that the Environment Committee’s decision of 23 June 1998 had replaced that of 4 November 1997. Thus, in so far as the applicants’ appeal could be interpreted as being directed also against the decision of 4 November 1997, it had ceased to exist and therefore did not require further measures from the Board. Turning to the substance of the applicants’ appeal, it found from its visit to the applicants’ property that the wind turbine created certain sound effects which could be considered disturbing but which were not serious enough to justify dismantling the turbine. In this respect, it noted that the measured noise levels did not reach the maximum recommended level of 40 dB. Moreover, the Board observed that the running of the wind turbine was subject to the regulations in the Environmental Code (Miljöbalken; 1998:808). Thus, if the applicants, or others, considered that the measures in force to minimise the noise from the wind turbine were insufficient, they could request that the Environment Committee impose further measures. Were the Committee to reject such a request, those who had made the demand could appeal against it to the environmental courts. In these circumstances, the Board found that there were no legal impediments to the wind turbine.
The applicants appealed to the County Administrative Court (länsrätten) of the County of Östergötland, maintaining their claims. In particular, they emphasised that the wind turbine was a serious nuisance and that the Environmental Committee had made an incorrect evaluation of the matter and several formal errors in its handling of the case. Moreover, they stated that the municipality had refused to carry out an impartial noise investigation despite requests from several of the concerned parties.
The Environment Committee disputed the applicants’ claims and insisted that its decision had been made in due order and was correct. It further observed that it still kept the question regarding a noise investigation open but that the concerned parties so far had agreed on certain specific measures to reduce the noise (such as stopping the wind turbine at low wind speed), which were re-evaluated regularly. Thus, at the moment it considered that a noise investigation was not necessary.
On 14 July 2000, after having visited the applicants’ property and held an oral hearing, the County Administrative Court rejected the appeal. It found that the Environment Committee’s decision had been lawful and that, although some sound effects from the wind turbine could be observed on the applicants’ property, the disturbance had to be considered tolerable.
Upon further appeal by the applicants both the Administrative Court of Appeal (kammarrätten) in Jönköping and the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 15 March 2002 and 7 June 2004 respectively.
B. Relevant domestic law and practice
Domestic provisions of relevance to the present case are to be found, primarily, in the Planning and Building Act (Plan- och bygglagen, 1987:10 - hereafter “the Act”) and in the Environmental Code (Miljöbalken, 1998:808 - hereafter “the Code”).
Thus, according to Chapter 1, section 5 of the Act consideration shall be given to both public and private interests when questions under the Act are examined, unless otherwise prescribed. It is the responsibility of each municipality to plan the use of land and water areas within their territory (Chapter 1, section 2). The County Administrative Board is the supervisory body of planning and building activities within its county and cooperates with the municipalities in their planning. Moreover, the National Board of Housing, Building and Planning (Boverket, hereafter referred to as “the NBHBP”) has general responsibility for the supervision of planning and building activities throughout Sweden (Chapter 1, section 8).
Furthermore, buildings shall be located and designed in a suitable manner with regard to the townscape or the landscape and the natural and cultural values at the site (Chapter 3, section 1 of the Act) and so that neither the buildings themselves nor their intended use will cause any danger or significant impact (betydande olägenhet) to the surroundings (Chapter 3, section 2). According to Chapter 3, section 14, these requirements also apply to constructions other than buildings, such as wind power stations.
It follows from Chapter 1, section 4 and Chapter 8, section 2 of the Act that building permits are required for the construction of new buildings, including wind power stations, inter alia, if the wind turbine is more than two metres in diameter. Moreover, Chapter 10, section 1, paragraph 2, states that when a measure which requires a building permit has been taken without permission, the municipal committee responsible for deciding on building permits shall ensure that such a construction is removed or otherwise rectified, unless a building permit is granted retrospectively.
Before an application for a building permit is decided upon, all known parties as well as known affected cooperative owners, tenants and residents, shall be informed and given the opportunity to state their opinions on the application (Chapter 8, section 22 of the Act). Also, decisions concerning building permits may be appealed against to the competent county administrative board (Chapter 13, section 2) and subsequently to the administrative courts (Chapter 13, section 4).
As concerns the Code, Chapter 1, Article 1 states, inter alia, that its purpose is to promote sustainable development which will ensure a healthy and sound environment for present and future generations. It shall ensure that human health and the environment are protected against damage and inconvenience, whether caused by pollutants or other sources, and that the use of land, water and the physical environment in general is such as to secure long-term good management in ecological, social, cultural and economic terms. It shall also encourage reuse and recycling as well as other management of materials, raw materials and energy with a view to establishing and maintaining natural cycles.
According to Chapter 2, Article 3 of the Code, those who pursue an activity or take a measure shall implement protective measures, comply with restrictions and take other precautions that are necessary in order to prevent, hinder or combat damage or detriment to human health or the environment as a result of the activity or measure. They are also obliged to plan and monitor the activity continuously in order to combat or prevent such effects (Chapter 26, Article 19). To ensure that these regulations are adhered to, the Environmental Protection Agency (Naturvårdsverket) and the county administrative boards exercise general supervision and a committee appointed by the municipal council is responsible for local supervision (Chapter 26, Article 3).
Appeals against decisions by municipal committees concerning the Code, including decisions to refuse a request for noise abatement measures or a noise investigation, may be lodged with the competent county administrative board unless otherwise provided (Chapter 19, Article 1), and further appeal lies to the Environmental Court and the Environmental Court of Appeal (Chapter 20, Article 2, and Chapter 23, Article 1). Anyone who is adversely affected by a judgment or decision may appeal against it, provided that it is appealable (Chapter 16, Article12). Thus, in a case from the Environmental Court of Appeal (MÖD 2004:31, judgment of 15 June 2004), the court set aside a judgment of the lower court and the County Administrative Board’s decision and referred the case back to the Board for a new examination because the municipal committee had turned down a request, put forward by some people living close to a wind power station, that the committee should, inter alia, make arrangements for a noise investigation of the wind power station, whereupon the Board had dismissed their appeal.
Chapter 32 of the Code contains provisions concerning compensation for certain kinds of environmental damage, inter alia, from noise. Hence, in accordance with Article 1, it is possible to get compensation for pecuniary loss that is not caused by a criminal offence, where the loss is of some importance and even if it is not caused deliberately or through negligence. However, the disturbance that causes the damage must not be tolerable in view of local conditions or with regard to the extent to which such disturbance normally occurs in similar conditions. Among those liable to pay compensation are, inter alia, those who pursue a harmful activity or who cause it to be pursued in their capacity as property owners or land leaseholders, including those who use the property for business or public activities (Article 6).
Anyone who wishes to claim compensation in accordance with Chapter 32 of the Code shall institute proceedings before an environmental court (Chapter 20, Article 2, paragraph 6 and Chapter 21, Article 2). Judgments and decisions by the Environmental Court may be appealed against to the Environmental Court of Appeal and further to the Supreme Court (Chapter 23, Articles 1 and 9). In one case, the Supreme Court granted some property owners compensation from the municipality for a decrease in the value of their properties caused by environmental disturbance from traffic noise and “aesthetic nuisance” from a newly built road (NJA 1999 p. 385, judgment of 14 June 1999).
In Sweden there are no binding rules regarding maximum noise levels in respect of wind turbines. However, according to the NBHBP’s general recommendations 1995:1 (“The Establishment of Wind Power Stations on Land” (Boverkets allmänna råd 1995:1, Etablering av vindkraft på land, 1995), the recommended levels set by the Environmental Protection Agency are applicable to wind turbines on land. Thus, the recommended levels that should normally not be exceeded when the turbine is in operation are, at night, 40 dB for housing areas and 35 dB for areas planned for recreational houses and active outdoor life. In one case concerning the establishment of a wind power plant (MÖD 2003:106, judgment of 7 November 2003), the Environmental Court of Appeal found in its judgment that the recommended maximum level of 40 dB for housing areas should apply both during the daytime and at night. In another case (MÖD 2006:8, judgment of 3 February 2006), the Environmental Court of Appeal held that the fact that an area was used for recreational houses did not suffice to characterise it as an area with “special qualities” and that, therefore, a maximum noise level of 40 dB was sufficiently far-reaching and there was no need to lower it to 35 dB as the complainants had requested.
The general recommendations of the NBHBP further state that noise calculations should be performed in connection with an examination under the Act. Such a noise test should be carried out according to a set method where the calculations should relate to a wind speed of eight metres per second, with a following wind, and at a height of ten metres from the ground. The levels of noise calculated should be drawn on a map of the area and marking the distances where the noise level is at 35, 40, 45 and 50 dB.
A new handbook “Planning and Processing of Permits for Wind Power Stations” (Planering och prövning av vindkraftsanläggningar) was published in 2003 by the NBHBP and replaced the recommendations from 1995. However, the recommendations concerning noise from wind turbines have not been altered.
In June 2006 the Swedish Parliament adopted the first Government Bill relating to wind power (Government Bill 2005/06:143, Miljövänlig el med vindkraft – åtgärder för ett livskraftigt vindbruk (“Environmentally friendly electricity using wind power – measures for a viable use of wind”)) in which it was stated that wind power should be given greater priority and various specific measures should be taken to promote and increase the use of wind power. It was further stressed that energy production in a sustainable society should have the smallest possible impact on the environment and the climate.
C. Noise levels and international standards
Most environmental noises can be approximately described by one of several simple measures. The sound pressure level is a measure of the air vibrations that make up sound and it indicates how much greater the measured sound is than the threshold of hearing. Because the human ear can detect a wide range of sound pressure levels, they are measured on a logarithmic scale with units of decibels (dB). If the instantaneous noise pressure level is measured this is called “A-weighting” (abbreviated dBA) whereas, if the noise pressure level is measured over a certain time span, this is called the “equivalent continuous sound pressure level” (abbreviated LAeq). Such average levels are usually based on integration of A-weighted levels. A simple LAeq type measure will indicate reasonably well the expected effects of specific noise.[1]
The World Health Organization (WHO) has published “Guidelines for Community Noise” (1999) and “Fact Sheet No. 258, on Occupational and Community Noise” (revised February 2001) which give guideline values for various environments and situations[2]. These guideline values are set at the level of the lowest adverse health effect, meaning any temporary or long-term deterioration in physical, psychological or social functioning that is associated with noise exposure, and represent the sound pressure level which affects the most exposed receiver in a given environment.
The guideline levels for annoyance have been set at 50 or 55 dB LAeq (measured for a period of sixteen hours in the daytime and eight hours at night), representing daytime levels below which a majority of the adult population will be protected from becoming moderately or seriously annoyed. It can be noted here that, according to the guidelines, a casual voice level in both men and women at a distance of one metre corresponds on average to 50 dB. Moreover, for most people, a lifetime’s continuous exposure to an average environmental noise of 70 dB will not cause hearing impairment, whereas exposure for more than eight hours a day to sound in excess of 85 dB is potentially hazardous. Thus, in relation to noise levels in homes, the guidelines state that to protect the majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and in outdoor living areas should not exceed 55 dB LAeq for steady continuous noise and should not exceed 50 dB LAeq to protect people from being moderately annoyed. These values are based on annoyance studies but most European countries have adopted a 40 dB LAeq as the maximum allowable for new developments.
At night, sound pressure levels at the outside façades of living spaces should not exceed 45 dB LAeq, so that people may sleep with bedroom windows open. This value has been obtained by assuming that the noise reduction from outside to inside with the window partly open is 15 dB and, where noise is continuous, the equivalent sound pressure level should not exceed 30 dB indoors, if negative effects on sleep, such as a reduction in the proportion of REM sleep, are to be avoided.
According to the American Speech-Language-Hearing Association[3], noise levels above 80 dB are potentially hazardous. To illustrate various noise levels, it gives the following examples: 80 dB = alarm clock, busy street, 70 dB = busy traffic, vacuum cleaner, 60 dB = conversation, dishwasher, 50 dB = moderate rainfall, 40 dB = quiet room, 30 dB = whisper, quiet library.
COMPLAINTS
The applicants complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that the continuous, pulsating noise from the wind turbine and the light reflections from its rotor blades interfered with their peaceful enjoyment of their property and made it impossible for them to enjoy their private and family life. They had bought the property for recreational purposes but the nuisance from the wind turbine had made it difficult to sit outside for long periods of time. Moreover, no independent noise investigation had been carried out despite their repeated requests for one. They further claimed that, as a result of the nuisance, the value of their property had decreased. Lastly, they complained under Article 13 of the Convention that, as the Environment Committee’s decision of 4 November 1997 had been taken without their involvement, they had been deprived of an effective domestic remedy for their Convention complaints.
THE LAW
1. The applicants complained that their right to enjoy their private and family life in accordance with Article 8 of the Convention had been infringed by the very disturbing, continuous noise from the wind turbine and the reflections of light from its rotor blades. In so far as relevant, this provision reads:
“1. Everyone has the right to respect for his private and family life [and] 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 ... the economic well-being of the country, ... or for the protection of the rights and freedoms of others.”
The Government first submitted that this complaint should be declared inadmissible for non-exhaustion of domestic remedies since the applicants had not availed themselves of all opportunities at the national level. In particular, a decision by the municipality to refuse a request to carry out a noise investigation could have been appealed against to a county administrative board and then to the environmental courts. The Government further questioned whether the second applicant could be said to have exhausted any domestic remedies since she had not formally been a party to the national proceedings.
In any event, the Government argued that the complaint under Article 8 of the Convention should be declared inadmissible ratione materiae because the property was only used for recreational purposes and thus could not be considered to fall under the notion of “home” in the first paragraph of Article 8. Furthermore, they submitted that the noise and reflections of light complained of by the applicants were not so serious that they attained the level of severity required by the Court’s case-law to fall within the sphere of Article 8. In this respect, they emphasised that the noise level at the applicants’ property had been measured at 39.4 dB for all three wind turbines together, which was below the recommended maximum level of 40 dB for residential areas. They further observed that it had not been demonstrated that the operation of the wind turbines had adversely affected the applicants’ mental or physical health.
However, if the Court were to consider that Article 8 was applicable to the present case, the Government contended that the complaint was manifestly ill-founded. They first noted that it was correct that the applicants had not been invited to submit their opinion prior to the decision adopted on 4 November 1997 by the Environment Committee but, since that building permit had never been acted upon, it had ceased to apply. Moreover, the applicants had been invited to comment on the new application for a building permit on the new location for the third wind turbine before the Environment Committee adopted its decision on 23 June 1998. Thus, the Government considered that the fault committed in the first proceedings had been remedied in the new proceedings concerning a building permit for the third wind turbine. They also observed that it was not in contravention of Swedish law to grant a building permit retrospectively and that the first applicant had made full use of his opportunities to appeal against the Environment Committee’s decision to the County Administrative Board and further to the administrative courts.
The Government then noted that, although the municipality had not arranged for a noise investigation to be carried out, it had not ruled out such an investigation being carried out in the future if there was a need. In any event, there was no legal requirement for a noise investigation to be carried out before granting a building permit even though they admitted that a noise test was recommended by the NBHBP (see “Relevant domestic law and practice” above). In the present case, the Government observed that noise tests had been submitted by the Joint Wind Association to the Environment Committee before its decision in June 1998. These calculations, which included the applicants’ property, had been carried out in accordance with the recommendations issued by the NBHBP. The Government emphasised that the applicants had not presented any evidence of noise levels exceeding the recommended levels.
Thus, the Government maintained that the alleged interference with the applicants’ rights under Article 8 was in accordance with the law and pursued the legitimate aim of protecting the economic well-being of the country and the rights and freedoms of others by contributing to the sustainable development of Sweden’s natural resources and ensuring that its citizens could live in a safe and peaceful environment.
Lastly, the Government contended that the necessity criterion set out in Article 8 § 2 of the Convention had been fulfilled, as wind power is a renewable source of energy considered to be environmentally friendly and to contribute to the sustainable development of society. The Government noted that the Environment Committee had also imposed certain temporary measures in its decision of 23 June 1998 aimed at reducing the noise from the wind turbine, and that these measures had been renewed. Moreover, both the County Administrative Board and the County Administrative Court had visited the applicants’ property to form their own opinion on the alleged noise disturbance before reaching their decisions. Thus, having regard to the wide margin of appreciation accorded to the Contracting States in matters raising environmental issues, the Government were of the opinion that the national authorities and courts had struck a fair balance between the public interest and that of the applicants in the instant case. Besides, the Government pointed out that the applicants still had the opportunity, in accordance with the Environment Code, to request further measures from the municipality, including a noise investigation, and had in fact been reminded of this by the County Administrative Board in its decision of 14 April 1999. Therefore, in conclusion, the Government contended that the complaint was manifestly ill-founded.
The applicants maintained that their rights under Article 8 of the Convention had been infringed. They firstly stated that both of them had complained about the third wind turbine to the Environment Committee and that, although the first applicant had handled the further complaints alone due to the second applicant’s heavy work schedule, they had been in agreement on how to deal with the complaints and appeals. They further claimed that the noise tests that had been carried out were simple “sales promotion” by the Joint Wind Association and were not comparable to a professional noise investigation carried out by an independent accredited agency. In this respect, they pointed out that noise reflection among houses could normally raise the noise level by three to five decibels and that the noise also depended on the weather, such as the humidity of the air and the wind speed. They reiterated that they had requested a proper noise investigation on several occasions but that this request had been ignored and most times not even put on record by the authorities. Moreover, their complaints with regard to the reflections of light from the rotor blades had essentially been ignored even though they were very disturbing. The applicants considered that the measures taken by the Joint Wind Association had had no effect and, in any event, claimed that they had been “forgotten” after the first two years. To them, it was clear that the Environment Committee and the Joint Wind Association were cooperating and protecting their economic interests rather than the well-being of the neighbours to the wind turbine and the living environment. Their quality of life and health were strongly affected by the pulsating sound from the rotor blades and their light reflections.
The Court first notes that the Government questioned the second applicant’s locus standi before the Court and also objected to the admissibility of the complaint on the ground that the non-exhaustion requirement as set out in Article 35 § 1 of the Convention had not been complied with. The Court, however, considers that it need not resolve these issues as the complaint is, in any event, inadmissible for the reasons set out below.
The Government submitted that the applicants’ complaint did not fall within the ambit of Article 8 of the Convention as the house on Hästholmen 1:17 was not their permanent residence but their place of leisure.
In this respect, the Court observes that the applicants have relied on their rights to “private and family life”, not to their “home”. However, irrespective of this, the Court reiterates that the essential object and purpose of Article 8 is to protect the individual against arbitrary interference by the public authorities (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251‑B, § 31). Moreover, it notes that in its relevant case-law it has adopted an extensive interpretation of the notions of “private life” and of “home” (see, inter alia, Niemietz, cited above, §§ 29-30, and Demades v. Turkey, no. 16219/90, § 33, 31 July 2003). Hence, in the Demades case, the Court considered that it might not always be possible to draw precise distinctions, since a person may divide his time between two houses or form strong emotional ties with a second house, treating it as his home. Therefore, a secondary house, which is fully furnished and equipped and used, inter alia, as a holiday home, can qualify as a “home” within the meaning of Article 8 (§§ 31-34). The Court finds no reason to depart from this extensive interpretation of the notion of “home”, noting that the applicants in the present case have been the owners of Hästholmen 1:17 for almost 20 years and have used it as a second home. Consequently, this requirement is fulfilled.
However, the Court observes that the Government have also argued that the level of severity needed to fall within the scope of Article 8 in cases concerning environmental issues has not been attained in the present case.
In relation to this, the Court recalls that 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 (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII). Specifically, Article 8 of the Convention applies to severe environmental pollution which 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, even without seriously endangering their health (see, among others, Taşkın and Others v. Turkey, no. 46117/99, § 113, ECHR 2004‑X).
Thus, the Court has found Article 8 to be applicable in, among others, the following circumstances. In López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C) the applicant lived for years only twelve metres from a waste-treatment plant which emitted smells, noise and fumes, including hydrogen sulphide emissions which exceeded the permitted limit and could endanger the health of those living nearby. In Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I) all the applicants lived in a village approximately one kilometre away from a factory which was classified as being high-risk as, in the course of its production cycle of fertilisers and caprolactam, it released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. In addition, because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards the village. Similarly, in Taşkin and Others (cited above) the applicants lived in villages situated near a gold mine where gold was extracted by sodium cyanide leaching and the Turkish Supreme Administrative Court had found that this represented a threat to the environment and the right to life of the neighbouring population. Likewise, in Fadeyeva v. Russia (no. 55723/00, ECHR 2005‑IV) the applicant lived 450 metres from the site of a steel plant (the largest iron smelter in Russia), within the delimited area in which the toxic pollution caused by steel production was excessive and where the maximum concentrations of pollutants registered near the applicant’s home were often ten times higher than the average annual concentrations, which were already above safe levels. Moreover, in Giacomelli v. Italy (no. 59909/00, 2 November 2006) the applicant lived 30 metres away from a plant for the storage and treatment of “special waste”, including the “detoxification” of hazardous waste, a process involving treatment of special industrial waste using chemicals. The operation of the plant had been found to be incompatible with environmental regulations by the Ministry of the Environment. In Moreno Gómez v. Spain (no. 4143/02, ECHR 2004‑X) the applicant lived in a residential area with licensed bars, pubs and discotheques in the vicinity of her home where the noise levels were measured in excess of 100 dB at 3.35 a.m. on Saturdays, although the legal maximum noise level was 45 dB between 10 p.m. and 8 a.m. The noise caused the applicant insomnia and serious health problems. Also, in Hatton and Others (cited above) the applicants, depending on the location of each of their homes in relation to Heathrow airport, were exposed to a noise level from aircraft disturbance of between 57 and 66 dB LAeq (the average degree of community annoyance from aircraft noise over a sixteen-hour daytime exposure). Moreover, the maximum “average sound exposure” suffered by each applicant was calculated at between 83.4 and 94.4 dB as a result of the seven different types of aircraft arriving at Heathrow before 6 a.m. each morning. Similarly, in Ashworth and Others v. the United Kingdom (no. 39561/98, 20 January 2004) the applicants lived close to an aerodrome. The noise levels at the home of one of the applicants had been measured at between 41 and 43 dB during mid-morning with background noises but without aviation activity. These levels were considered to be typical for a semi-rural location. However, the noise levels increased to between 64 and 67 dB, and occasionally to more than 75 dB, when there were fixed-wing and helicopter aircraft activities at the aerodrome.
Thus, as demonstrated by the above-mentioned cases, the Court reiterates that, in order to raise an issue under Article 8, the interference must directly affect the applicant’s home, family or private life and the adverse effects of the environmental pollution must attain a certain minimum level of severity. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects. The general context of the environment should also be taken into account. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent in life in every modern city (see Fadeyeva, cited above, §§ 68-69).
Turning to the case before it, the Court accepts that the applicants were directly affected by the wind turbine as it emitted a constant, pulsating sound while functioning. However, the Court must also establish whether this nuisance reached the minimum level of severity set by its case-law.
The Court first notes that the noise tests, which were carried out in May 1998, showed that the noise levels in respect of the applicants’ property were calculated at 37.7 dB from the third wind turbine alone and at 39.4 dB from all three wind turbines together. The tests were carried out in accordance with the recommendations by the NBHBP, in the evening at a wind speed of eight metres per second, and in the presence of the applicants. Although the Court is aware that the applicants have criticised these tests, it notes that they have not submitted any alternative noise tests. Furthermore, they did not maintain their request for an in-depth noise investigation before the national authorities by making a formal demand following the evaluation meeting of 28 October 1998, or at a later point, despite being reminded of the opportunity to do so by the Board in its decision of 14 April 1999. As pointed out by the Government, such a demand would have resulted in a decision by the Environment Committee which could have been appealed against to the Board and subsequently to the environmental courts. In these circumstances, the Court accepts the results from the noise tests which were carried out as an approximate estimate of the noise levels emitted from the wind turbines.
The Court also takes into account the WHO’s Guidelines for Community Noise and its Fact Sheet No. 258 (see above under “Noise levels and international standards”) from which it appears that noise can be a serious health hazard and that exposure for more than eight hours a day to sound in excess of 85 dB is potentially dangerous. Moreover, the guideline values for annoyance have been set at 50 or 55 dB, representing daytime levels below which a majority of the adult population will be protected from becoming moderately or seriously annoyed. In this respect, the Court notes that a “casual voice level” in both men and women at a one-metre distance corresponds on average to 50 dB and that, where the noise is continuous, the equivalent sound level should not exceed 30 dB indoors, if negative effects are to be avoided. It recalls that the noise reduction from outside to inside with a window partly open has been estimated at about 15 dB.
Consequently, even having regard to the applicants’ submission that the noise level could be 3 to 5 dB higher than shown by the noise tests, that is roughly between 42 and 45 dB, this does not exceed the level recommended by the WHO, either outdoors or indoors, and it only slightly exceeds the recommended maximum level in Sweden. It is also significantly inferior to the noise levels measured in the cases cited above (Moreno Gómez, Hatton and Others, and Ashworth and Others). Therefore, in the Court’s view, the nuisance caused by the wind turbine cannot be found to reach the level of constituting severe environmental pollution. It further considers that, even though the applicants’ property is used mainly for recreational purposes and is located in a semi-rural area, the noise levels are not such as to seriously affect the applicants or prevent them from enjoying their home and their private and family life. In reaching this conclusion, the Court also has regard to the fact that both the Board and the County Administrative Court, before deciding on the appeal, visited the applicants’ property to form their own opinion about the noise level and found that although the sound emitted from the wind turbine could be considered somewhat disturbing it was at a tolerable level.
As concerns the applicants’ allegation that the reflections of light from the wind turbine have strongly affected them, the Court finds that they have not substantiated this claim in any way and that, throughout the national proceedings as well as in the proceedings before the Court, it has been mentioned only cursorily as a secondary effect after the noise.
Lastly, the Court observes that the applicants have not furnished the Court, or the national authorities, with any medical certificates to substantiate that their health has been adversely affected by the noise or the light reflections.
Hence, having regard to the above and its case-law, the Court finds that the noise levels and light reflections in the present case were not so serious as to reach the high threshold established in cases dealing with environmental issues.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
2. The applicants further complained under Article 1 of Protocol No. 1 to the Convention that the noise and reflections of light from the wind turbine interfered with their peaceful enjoyment of their property and that the nuisance had decreased the value of their property. This provision reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government submitted that this complaint also should be declared inadmissible for non-exhaustion of domestic remedies since the applicants, if they considered that their property had decreased in value due to the noise and the light reflections from the wind turbine, could have instituted proceedings in an environmental court claiming financial compensation from, inter alia, the owners of the land where the wind turbine was located or from the owners of the wind turbine.
In any event, the Government argued that the complaint should be declared inadmissible ratione materiae because there had been no deprivation, control of use or interference with the applicants’ peaceful enjoyment of their possessions. However, if the Court were to consider that this provision was applicable to the present case, the Government contended that the complaint was manifestly ill-founded. Referring in extenso to their submissions under Article 8, the Government insisted that, having regard to the wide margin of appreciation accorded to the Contracting States in matters raising environmental issues, the alleged interference with the applicants’ property rights was in accordance with the law, was proportionate and had a legitimate aim. Thus, they were of the opinion that the national authorities and courts had struck a fair balance between the public interest and that of the applicants in the instant case.
The applicants maintained that their rights under Article 1 of Protocol No. 1 had been infringed by the nuisance caused by the wind turbine and that it had decreased the value of their property. They relied on the same grounds as they had for their complaint under Article 8 of the Convention.
Even assuming that the nuisance from the wind turbine can be considered to amount to an inference with the applicants’ peaceful enjoyment of their property, and that the complaint thus falls within the ambit of Article 1 of Protocol No. 1, the Court considers that it is manifestly ill-founded, for the reasons below.
Firstly, the Court observes that the original building permit for the third wind turbine, which was granted on 4 November 1997 by the Environment Committee, was repealed and replaced by a new building permit issued on 23 June 1998 by the Committee. This new building permit had been granted only after the applicants and other neighbours within a radius of 500 metres from the wind turbine had been invited to submit their opinions and also had done so. Moreover, the Swedish Civil Aviation Administration, the Swedish Armed Forces and the Board had been heard on the matter and the noise tests of 20 May 1998 had been submitted to the Environment Committee. The Court further notes that this decision was appealed against by the applicants first to the Board and then to the administrative courts. Both the Board and the County Administrative Court heard the appeal on its merits and they also visited the applicants’ property and held an oral hearing in the case before rejecting the appeals. The Court also recalls that Swedish legislation allows for building permits to be granted retrospectively and that, if a permit is not granted for a structure which had already been erected, the owners of that structure are obliged to dismantle it. Thus, it is clear to the Court that the building permit was granted in accordance with national law and hence the wind turbine was lawful.
Secondly, to the Court, there is no doubt that the operating of the wind turbine is in the general interest as it is an environmentally friendly source of energy which contributes to the sustainable development of natural resources. It observes that the wind turbine at issue in the present case is capable of producing enough energy to heat between 40 and 50 private households over a one-year period, which is beneficial both for the environment and for society.
Lastly, the Court must decide whether, when granting the retrospective building permit, a fair balance was struck between the competing interests of the individuals affected by the noise from the wind turbine and the community as a whole. In Hatton and Others (cited above, § 122) the Court stated that 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. In the present case, this means that the Court must have regard to the positive environmental consequences of wind power for the community as a whole while also considering its negative impact on the applicants. In this respect, it reiterates that in cases raising environmental issues the State must be allowed a wide margin of appreciation (see, among others, Hatton and Others, cited above, § 100, and Taşkın and Others, cited above, § 116). However, due weight must be given to the individual’s interests (Hatton and Others, cited above, § 99).
As the Court has already found when examining the complaint under Article 8 of the Convention, the nuisance caused to the applicants by the wind turbine cannot be considered so severe as to affect them seriously or impinge on their enjoyment of their property. In relation to the interests of the community as a whole, the Court reiterates that wind power is a renewable source of energy which is beneficial for both the environment and society. Moreover, the Court attaches weight to the fact that, in order to reduce the noise from the wind turbine, the Environment Committee imposed certain temporary restrictions on its functioning, which were subsequently extended. The Court is aware that the applicants considered these measures to be insufficient but observes that they could have requested, and still can, the imposition of further measures and that they were reminded of this possibility by the Board in its decision of 14 April 1999. Thus, a constant review of the measures already taken and the opportunity to request further measures are available to the applicants through the Environmental Code.
In these circumstances, the Court finds that the alleged interference was proportionate to the aims pursued and, consequently, this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
In so far as concerns the applicants’ claim that their property has decreased in value as a result of the noise and light reflections emitted from the wind turbine, the Court finds that they have failed to substantiate this allegation as they have not submitted any evidence that house prices in general or the value of their property in particular have been adversely affected by the wind turbine. In any event, the Court finds that the applicants did not exhaust domestic remedies available to them in this respect as they failed to institute any proceedings at the national level for financial compensation for the alleged loss of value of the property.
Thus, this part of the complaint is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.
3. The applicants also complained that they had been deprived of an effective domestic remedy for their Convention complaints, invoking 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 and Others judgment, § 137, with further references, and Ashworth and Others, cited above). The Court has found that the applicants’ complaint under Article 8 is manifestly ill-founded and that their complaints under Article 1 of Protocol No. 1 are manifestly ill-founded and inadmissible for non-exhaustion of domestic remedies, respectively. 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.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court by a majority
Declares the application inadmissible.
Santiago Quesada Josep Casadevall Registrar President
[1] World Health Organization, “Guidelines for Community Noise”, Geneva 1999, Chapter 2.
[2] Chapter 4 of the Guidelines.
[3] The American Speech-Language-Hearing Association, 2007, “Noise and Hearing Loss”: http://www.asha.org/public/hearing/disorders/noise.htm