Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 38387/97
by Anwara KHATUN and 180 Others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 1 July 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 October 1997
by Anwara KHATUN and 180 Others against the United Kingdom and
registered on 31 October 1997 under file No. 38387/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a Bangladeshi citizen, resident in London.
He and the other 180 applicants are represented before the Commission
by Sally Moore of Leigh, Day & Co, Solicitors in London. A list of the
applicants is annexed to the present decision.
The facts of the application, as submitted by the applicants'
representative, may be summarised as follows.
The applicants all live in residential dwellings in the Limehouse
and Poplar areas of London nearby to the Docklands. The areas of
Limehouse and Poplar are characterised by the predominance of low cost
housing. The majority of the applicants' homes are owned by the
municipal council or local housing associations. There is a high
percentage of ethnic minorities, recent immigrants and refugees in the
areas. Limehouse and Poplar are adjacent to the old West India docks,
part of which is referred to as Canary Wharf. By the mid 1970's, the
docks, previously a thriving port, had become largely derelict.
The Local Government, Planning and Land Act 1980 contained
provisions designed to encourage the regeneration of such areas. It
provided that if the Secretary of State was of the opinion that it was
"expedient in the national interest", he could designate an area as an
"urban development area" and establish an "urban development
corporation" for the purposes of regenerating the area. The 1980 Act
listed the ways in which regeneration of the area was to be achieved:
"...bringing land and buildings into effective use, encouraging
the development of existing and new industry and commerce,
creating an attractive environment and ensuring that housing and
social facilities are available to encourage people to live and
work in the area..."
In 1981 the Secretary of State designated the London Docklands
an urban development area and established the London Docklands
Development Corporation (the "LDDC").
In order to encourage development by the private sector, the Act
enabled the Secretary of State to override the normal requirements for
planning permission contained in the Town and Country Planning
Act 1971. Under those powers, he approved a scheme adopted by the LDDC
for designating the London Docklands area as an enterprise zone. The
scheme provided that (subject to certain exceptions) all land in the
zone was deemed to be granted planning permission for any kind of
development.
Before the 1980 Act it is likely that prior to the grant of such
planning permission in Limehouse, a public inquiry under the 1971 Act
would have been held for local residents to put forward any objections.
In an enterprise zone, the procedure for the protection of neighbouring
interests was limited. Before adopting the scheme, the LDDC was
obliged to consider representations by the residents. If their
representations were rejected, the residents could lobby members of
Parliament to try to have the scheme annulled by negative resolution.
In all other respects, their interests were liable to be overridden by
the Secretary of State's view of the national interest and the LDDC's
view of the best way to achieve its statutory objectives.
In July 1986 the LDDC concluded agreements in relation to
building works in Limehouse and Poplar. As part of these works, the
LDDC employed contractors to construct a new road, called the Limehouse
Link Road giving access to the Docklands area from Central London. A
great deal of excavation and earth moving was necessary for the road,
nearly a mile of which was to be underground.
Construction of the road and other projects in the area lasted
from November 1989 to May 1993. The construction caused a great deal
of dust to rise in the air which settled on the homes and gardens of
the applicants. If they opened their windows, everything in the room
was soon covered in a layer of dust. On hot days they had to decide
whether to endure the heat or to open the windows and endure the dust.
The residents found it very hard to keep their property clean. If they
hung out the washing in the garden it became dirty again, with the
result that the residents had to use launderettes to dry their clothes.
Frequently they were unable to enjoy their gardens for recreational
purposes because of the levels of dust contamination.
On 16 December 1993 a group of residents from the Limehouse and
Poplar areas commenced an action in the High Court based on negligence
and nuisance against the LDDC and an action based on nuisance against
Canary Wharf Limited, the company responsible for the construction of
the Canary Wharf tower which disrupted television reception in the
Docklands area. The applicants numbered about 513 individuals (the
number fluctuated during the proceedings) and about 127 households.
Many of the applicants had no proprietary interests in their homes, for
example the wives of husbands who were the sole owners of the
properties, relatives or lodgers.
On 9 November 1994 the first instance court held that a plaintiff
in an action for private nuisance must have a right to exclusive
possession of the property to which the nuisance is alleged to have
been caused.
The Court of Appeal reversed this decision and held that:
"A substantial link between the person enjoying the use and the
land on which he or she is enjoying it is essential, but, in my
judgment, occupation of property, as a home, does confer upon the
occupant a capacity to sue in private nuisance."
The House of Lords, however, held on 26 April 1997 that a person
who had no right to the land affected by a nuisance could not bring an
action in private nuisance. The tort of nuisance was directed against
the plaintiff's enjoyment of his rights over land and, ordinarily, only
a person with a right to exclusive possession of the land affected,
such as the freeholder, a tenant in possession or a licensee with
exclusive possession could sue, but, exceptionally, a person who was
in exclusive possession of land but who was unable to prove title to
it could also sue. However, a mere licensee or occupier had no right
to sue.
The remaining plaintiffs with a proprietary interest retained
their right to sue for the unnecessary nuisance. The House of Lords
held:
"In the case of nuisances productive of sensible personal
discomfort, the action is not for causing discomfort to the
person but...for causing injury to the land. True it is that the
land has not suffered "sensible" injury but its utility has been
diminished by the existence of the nuisance. It is for an
unlawful threat to the utility of his land that the possessor or
occupier is entitled to an injunction and it is for the
diminution in such utility that he is entitled to such
compensation."
The damages for such compensation would therefore be calculated
by reference only to the value of the land occupied by the plaintiffs
and would have no reference to the individual's personal discomfort.
Lord Hoffman:
"It seems to me that the value of the right to occupy a house
which smells of pigs must be less than the value of the
occupation of an equivalent house which does not. In the case
of a transitory nuisance, the capital value of the property will
seldom be reduced. But the owner or occupier is entitled to
compensation for the diminution in the amenity value of the
property during the period for which the nuisance persisted. To
some extent this involves placing a value on intangibles. But
estate agents do this all the time.
It follows that damages for nuisance recoverable by the possessor
or occupier may be affected by the size, commodiousness and value
of his property but cannot be increased merely because more
people are in occupation and therefore suffer greater collective
discomfort. If more than one person has an interest in the
property, the damages will be divided amongst them."
According to this finding, the damages would be calculated by
assessing a notional market rental value for each property without the
presence of the environmental nuisance, assessing the reduction in such
rental value caused by the presence of the nuisance and multiplying
this reduction by the duration of the nuisance. This would provide the
sole measure of compensation for loss of amenity caused by the presence
of the nuisance for each household. This decision meant that legal aid
would be discharged on cost benefit grounds. The predicted value of
the collective claim was so low that any pursuit of such claim in the
United Kingdom courts would be futile.
In addition, dust nuisance of the type suffered by the applicants
is not a statutory nuisance within the meaning of the Environmental
Protection Act 1990 and the applicants would not have been able to
pursue a statutory claim against the LDDC either.
COMPLAINTS
The applicants complain that as a result of excessive dust caused
by construction work between November 1989 and May 1993, their rights
to respect for their homes and private lives have been violated
contrary to Article 8 of the Convention.
They also complain under Article 14 of the Convention that they
have been discriminated against on the grounds of poverty in that the
amount of compensation they may receive for dust nuisance depends on
the difference in value between the property as affected by dust and
the property when not affected. Given the fact that the applicants'
housing is at the lower end of the scale in terms of amenity and cost,
the presence of such a nuisance although causing significant personal
discomfort, has little or no effect on the market value of the
properties. Accordingly, even if those applicants with a proprietary
interest are successful in establishing that they were victims of
unlawful environmental nuisance, they will nevertheless receive little
or no compensation.
Further they complain under Article 13 of the Convention, that
the judgment of the House of Lords in Hunter and others v. Canary Wharf
Ltd; Hunter and others v. London Docklands Development Corp. ([1997]
2 All ER 426) leaves them with no effective remedy to seek compensation
for the alleged violation of their rights under Article 8. Without
legal aid, they were financially unable to pursue their nuisance
claims.
THE LAW
1. The applicants allege that their rights to respect for their
homes and family and private lives have been violated contrary to
Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and 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 Commission notes that in the domestic proceedings, a
distinction was made between those applicants with a proprietary
interest in the land and those without such an interest. For the
purposes of Article 8 (Art. 8) of the Convention, there is no such
distinction. "Home" is an autonomous concept which does not depend on
classification under domestic law. Whether or not a particular
habitation constitutes a "home" which attracts the protection of
Article 8 para. 1 (Art. 8-1) of the Convention will depend on the
factual circumstances, namely, the existence of sufficient and
continuous links (see Eur. Court HR, Gillow v. United Kingdom judgment
of 24 November 1986, Series A no. 109). Even where occupation of the
property is illegal, this will not necessarily prevent that occupation
from being that person's "home" within the meaning of Article 8
(Art. 8) of the Convention (see Eur. Court HR, Buckley v. United
Kingdom judgment of 25 September 1996, Reports-IV 1996). The
Commission considers that Article 8 para. 1 (Art. 8-1) applies to all
the applicants in the present case whether they are the owners of the
property or merely occupiers living on the property, for example the
children of the owner of the property.
The Commission notes that the applicants were unable to use their
gardens or open their windows without being covered in dust emanating
from the construction work, although no mention is made of any health
problems as a result of exposure to dust. The Court has found that
aircraft noise may constitute an environmental nuisance in that the
quality of the applicants' private lives and the scope for enjoying the
amenities of their homes was adversely affected by the noise generated
by aircraft using Heathrow Airport, albeit to greatly differing degrees
(see Eur. Court HR, Powell and Rayner v. United Kingdom judgment of
21 February 1990, Series A, no. 172). Nauseating smells, pestilential
fumes and persistent noise which emanated from a waste-treatment plant
in Murcia and caused health problems to the applicant and her daughter,
were also considered likely to impair the applicant's private and
family life (see Eur. Court HR, López Ostra v. Spain judgment of
9 December 1994, Series A no. 303, p. 54). The Court went on to say
in that case:
"Naturally, severe environmental pollution may affect
individuals' well-being and prevent them from enjoying their
homes in such a way as to affect their private and family life
adversely, without, however, seriously endangering their health."
Whether the question is analysed in terms of a positive duty on
the State - to take reasonable and appropriate measures to secure the
applicants' rights under Article 8 para. 1 (Art. 8-1) of the Convention
- or, in terms of an "interference by a public authority" to be
justified in accordance with Article 8 para. 2 (Art. 8-2), 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 any case the State enjoys a certain margin of appreciation.
Furthermore, even in relation to the positive obligations flowing from
the Article 8 para. 1 (Art. 8-1), in striking the required balance the
aims mentioned in the second paragraph may be of a certain relevance
(see the López Ostra v. Spain judgment, op. cit.).
The Commission considers that although none of the applicants has
alleged any ill-health as a result of dust contamination (either during
the domestic proceedings or before the Commission), the fact that they
could not open windows or dry their laundry outside for a period of
three years severely impaired their right to enjoy their homes and
private or family lives.
According to the constant case-law of the Convention organs, an
interference under the first paragraph of Article 8 (Art. 8) entails
a violation unless it is "in accordance with the law", has an aim that
is legitimate under Article 8 para. 2 (Art. 8-2) and is "necessary in
a democratic society" for the aforesaid aim (see Eur. Court HR, W. v.
the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27,
para. 60). The development of the Docklands and the construction work
was pursuant to a scheme under the Local Government, Planning and Land
Act 1980 approved by the Secretary of State which obviated the need for
any planning permission and which the Commission finds was "in
accordance with the law". The Commission further notes that the aim
of the 1980 Act was to regenerate derelict urban areas and considers
that the measures employed pursued the legitimate aims of the economic
well-being of the country as provided for in the second paragraph of
Article 8 (Art. 8) of the Convention.
The Commission further recalls that the case-law of the
Commission and the Court establishes that the notion of "necessity"
implies that the interference corresponds to a pressing social need and
that it is proportionate to the aim or aims pursued. In assessing the
proportionality, regard must be had to whether a fair balance has been
struck between the demands of the general interest of the community and
the requirements of the protection of an individual's fundamental
rights. In determining whether an interference is justified the
Commission and Court will take into account that a margin of
appreciation is left to the Contracting States, which are in principle
in a better position to make an initial assessment of the necessity of
a given interference (see Eur. Court HR, Olsson v. Sweden judgment of
24 March 1988, Series A no. 130, p. 32, para. 68).
The Commission must consider the general interests of the
community against the applicants' rights to respect for their private
and family lives and their homes. The regeneration of the Docklands
area pursued a legitimate and important aim. The construction of the
road, providing a link to Central London, was essential to the
development of the area.
Against this important public interest must be weighed the
applicants' own position. They suffered a considerable degree of
inconvenience from dust, and it was apparently not open to them to
pursue any remedy in respect of that inconvenience. In the case of
some of them, the absence of a remedy stemmed from the absence of
property interests in their homes; in the case of others, from the fact
that damages for nuisance for personal discomfort are limited to a loss
of value of the property. However, the Commission notes that the
inconvenience, whilst undoubtedly unpleasant, has not been claimed to
have given rise to health problems for any of the applicants. Further,
it was limited in time to the period of the works, some three and a
half years, and it is unlikely that all applicants were equally
severely affected for the whole of that period. Moreover, the
Commission notes that it appears that no action was attempted whilst
the problems with the dust still subsisted. No remedy sought after the
end of an alleged nuisance can prevent the nuisance from happening, and
calculation of compensation is necessarily difficult, especially where
no harm to health or depreciation of property is alleged.
Given the importance of the public interest in the present case,
together with the limits on the extent to which the applicants suffered
from the dust caused, the Commission cannot find that a fair balance
has not been achieved.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants further complain under Article 14 (Art. 14) of the
Convention that they have been discriminated against on the grounds of
poverty.
Article 14 (Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) affords
protection against discrimination, that is treating differently,
without an objective and reasonable justification, persons in
"relevantly" similar situations. For a claim of violation of this
Article to succeed, it has therefore to be established, inter alia,
that the situation of the alleged victim can be considered similar to
that of persons who have been better treated (see Eur. Court HR, Fredin
v. Sweden judgment of 18 February 1991, Series A no. 192, p. 19, para.
60). The applicants must show that they are persons in the same
category as another, that they have been treated differently, that such
treatment was not objectively and reasonably justified, and the
treatment was carried out by the Contracting State against which the
complaint is being made. There are no other persons in "relevantly "
similar situations to the applicants. There is no evidence that there
are persons in the same category as the applicants who have been
treated more favourably.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants also complain under Article 13 (Art. 13) of the
Convention that there is no effective remedy available to them under
English law to seek proper compensation.
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31). In the
present case, the Commission has rejected the substantive claims as
disclosing no appearance of a violation of the Convention. For similar
reasons, they cannot be regarded as "arguable".
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber