Noise Nuisance and the Right to Respect for Private and Family

Noise Nuisance and the Right to Respect for Private and Family Life: the Moreno Gómez case

It is arguable that noise is one of the most significant environmental problems of the time. This can be demonstrated by the recent attempts by Parliament to give more statutory powers to local authorities to enable them to tackle noise problems.^¹ This can also be demonstrated at European level by the Heathrow night-flights litigation saga that reached the Grand Chamber of the European Court of Human Rights (ECtHR).^²

In England, noise nuisances are primarily regulated by local authorities when they amount to a statutory nuisance. Because the legislative regime on statutory nuisances is the paradigm case of state intervention in private affairs,^³ this means that human rights issues are to be taken into consideration by local authorities. In this respect, the case of Moreno Gómez v Spain^⁴ is important as it clearly indicates that the failure of a local authority to take effective measures against noise nuisances that affected the applicant’s home and family life, can amount to a violation of article 8 of the European Convention of Human Rights (ECHR).

The applicant to the ECtHR moved into a flat in a residential part of the Spanish city of Valencia in 1970. However, the residential character of the neighbourhood did not last long, as the Valencia City Council in 1974 started granting licenses for the opening of bars, pubs and discotheques. As a result, the sleep of local residents including the applicant has been disturbed ever since by noise. It seems that in this area there were as many as 127 nightclubs.^⁵

In trying to address this problem, the City Council designated in a bylaw this area as an acoustically saturated zone, thereby imposing a ban on new activities that could lead to the emission of more noise pollution, such as the opening of nightclubs. However, despite this ban, the City Council granted a license for a discotheque to be opened in the building in which the applicant lived. This license was subsequently declared invalid by the relevant Spanish court.

Additionally, the City Council adopted a bylaw imposing noise emission levels that were not to be exceeded. However, this did not effectively address the issue of noise pollution as the entertainment industry flouted both the bylaw on maximum noise levels and the regulations concerning the closure time of these establishments. Although the City Council had taken regulatory action to address these noise nuisances, it was obvious that its enforcement procedures were inefficient.

Because the applicant, as a result of the noise nuisances, was suffering from insomnia and serious health problems, she sued the City council in the relevant Spanish Court for the damage she had sustained and the cost of installing double glazing. However, her claim was dismissed as the Valencia High Court of Justice found she had not discharged the burden of proof required to prove the damage she had suffered.

The applicant then lodged an amparo appeal in front of the Spanish Constitutional Court.^⁶ However, she was unsuccessful again, as the court dismissed her appeal on the ground that she had not proved the existence of a direct link between the noise and the alleged damage or the existence of a nuisance in her home amounting to a violation of the Spanish Constitution.

As a last resort, the applicant in 2001 lodged an appeal to the ECtHR alleging that the Spanish authorities were responsible for the damage she had suffered as a result of these noise nuisances, because the local authorities in Valencia had failed to put a stop to the night-time disturbances and that the resulting onslaught of sound constituted a violation of her right to respect for her home, as guaranteed by Article 8 of the ECHR.

By a decision of June 29, 2004 on the admissibility of the case, the fourth Chamber of the ECtHR declared the application admissible.^⁷

II) Judgment of the Court of Strasbourg

The Court, in its judgment handed down on November 16, 2004, started by restating its previous case-law on article 8 of the ECHR and by analysing the scope of the protection offered by this article.

Paragraph 1 of article 8 establishes the right to respect for private and family life, home and correspondence. This article protects individuals from arbitrary interference with these protected rights by public authorities. According to paragraph 2 of article 8 public authorities are permitted to interfere with these rights only when it is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the economic well-being of a country, the prevention of disorder or crime, the protection of health or morals, or for the protection of the rights and freedoms of others. Apart from such a negative obligation not to interfere with the amenities protected by article 8, this provision has also been interpreted as containing positive obligations inherent in the right to respect of private and family life.^⁸

Article 8 provisions might seem unlikely to sustain any environmental right. However, the ECtHR has used it in order to guarantee environmental rights. This was first done in the case of López Ostra v. Spain.^⁹ In this particular case, the Court held that there had been a violation of the applicant’s right to respect of private and family life because she had to live in very difficult conditions next to a waste treatment plant that was allowed to operate without a licence and emitted gas fumes, pestilential smells and contamination. The court considered that the Spanish State did not succeed in striking a fair balance between the interest of economic well-being (that of having a waste-treatment plant) and the applicant's effective enjoyment of her right to respect for her home and her private and family life and that consequently it had violated article 8 by failing to protect these amenities.

The López Ostra case was greeted by scholars as a movement of the ECtHR towards protecting environmental values.^¹⁰ The Court in the subsequent Guerra case^¹¹ reiterated the findings in López Ostra that severe environmental pollution can affect the individuals’ well-being preventing them from enjoying their homes in such a way that it leads to an interference with their private and family life. In the Guerra case, the population of an Italian town successfully complained about the local government's lack of information in respect of a nearby chemical plant, which was presenting a hazard to those living nearby. There had been a history of incidents at the plant, including one explosion in 1976 when local people had to be hospitalised. Still, the applicants themselves could not show that they had directly and physically suffered by the specific regulatory acts or omissions by local government of which they complained. The ECtHR held that the local government's failure to give local residents information that would allow them to assess the risks of living in the factory’s vicinity, amounted to a violation of article 8 which protects family life. According to the ECtHR in Moreno Gómez this shows that the right to respect of the home is not confined to concrete or physical interferences, such as unauthorised entry into a person's home, but also includes those matters that are not concrete or physical, such as noise, emissions, smells or other forms of interference. The Court in Moreno Gómez after mentioning the above cases, also referred to what was held in the Hatton case, that a serious interference may result in the breach of a person's right to respect for his home if it prevents him from enjoying the amenities of his home.

The Court then held that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it can be engaged when public authorities adopt measures designed to secure respect for private life by regulating the relations of individuals between themselves.^¹² The court then indicated that the interpretation of article 8 is broadly the same both in cases involving a positive duty on the State to take reasonable and appropriate measures to secure the rights arising under paragraph 1 of article 8 and cases involving a direct interference by a public authority with the rights protected by article 8, in which case paragraph 2 of this article comes into play to establish possible grounds for such an interference.^¹³ In both contexts the proportionality test is applicable between the competing interests of the individual and of the community as a whole.^¹⁴

Finally, the court restated the well-established principle that the ECHR is intended to guarantee rights that are “practical and effective”, not “theoretical or illusory”, which means that the protection that Member States are to accord to convention rights has to be effective in practice.

After restating these principles arising under article 8, the Court went on to apply them to the facts of the Moreno Gómez case.

First, the Court held that this case did not involve a direct interference by public authorities with the right to respect for home, but was concerned with their failure to take action to put an end to third-party breaches of the right relied on by the applicant. This was because the noise nuisances were not caused by the local authority itself but by the various licensed premises in the area concerned. The Court then went on to determine whether the noise nuisances had attained the minimum level of severity required to constitute a violation of Article 8.

The ECtHR acknowledged that the applicant lived in an area that was indisputably subject to night-time noise disturbances that clearly unsettled her as she went about her daily life, particularly at weekends, and that the existence of the disturbances had been noted on a number of occasions. As a consequence the Court considered that there appeared to be no need to require, as the Spanish Courts had done, a person from an acoustically saturated zone to adduce evidence of a fact of which the municipal authority was already officially aware.

Then, the ECtHR held that "In view of its volume – at night and beyond permitted levels – and the fact that it continued over a number of years, the Court finds that there has been a breach of the rights protected by Article 8."^¹⁵

The Court also rejected the argument of the Spanish Government that this breach was justified because the City council had taken measures to abate these nuisances and thus protect the applicant's human rights, by adopting inter alia a bylaw on maximum noise and vibration levels. The ECtHR held that although the City Council had adopted measures intended to secure respect for human rights, it had "tolerated, and thus contributed to, the repeated flouting of the rules which it itself had established".^¹⁶ The Court refused to accept that such a lack of effective enforcement was a proportionate response to the human rights interference the applicant had suffered, in the light of the principle that the ECHR is intended to protect effective and not illusory rights and that, thus, "regulations to protect guaranteed rights serve little purpose if they are not duly enforced."^¹⁷

As a consequence of this lack of effective enforcement of the regulatory measures designed to protect people against noise nuisances, the ECtHR found that Spain had violated the applicant's human right to respect for her home and private life, as it had not discharged its positive obligation to protect human rights. Thus, the court applied article 41 of the ECHR and awarded her compensation for pecuniary and non pecuniary damage and also a sum for costs and expenses.^¹⁸

III) The importance of effective enforcement of regulatory schemes protecting human rights

The Moreno Gómez case can only be correctly understood if it is contrasted with the very similar Hatton case, as in both cases there was an interference with article 8 rights due to high levels of noise nuisances and it was claimed that the respondent state was liable due to a failure to regulate a private industry in a manner securing proper respect for the rights enshrined in Art. 8.

The Hatton case concerned applicants living near Heathrow airport, suffering from sleep disturbances and other health issues due to the noise emitted by aircrafts taking off and landing at night. The applicants complained that the 1993 Government policy on night flights at Heathrow gave rise to a violation of their rights under Art. 8 of the Convention. Thus, the question the Court had to answer, was similar to the one in the Moreno Gómez case: whether in the implementation of the relevant policy aimed at abating the noise nuisances affecting the private and family lives of the applicants, a fair balance was struck between the competing interests of the individuals affected by the nuisances and the community as a whole. In the Hatton case, the Court held that the authorities had not overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected to respect for their private life and home, and the conflicting economic interests of others (mainly the airline industry and air-passengers) and of the community as a whole.

The Hatton case and the Moreno Gómez case can be distinguished on the fact that in the Hatton case there was not a failure to comply with the requirements of domestic law by the private persons causing the noise nuisance. By contrast, there was such a failure in the Moreno Gómez case, which was also tolerated by the public authority responsible for enforcing the relevant regulatory scheme.

In the Moreno Gómez case, the ECtHR seems to indicate that if a lack of enforcement of the regulatory scheme designed to abate noise nuisances renders the whole scheme ineffective, then there is no need to assess whether this scheme as a whole is compatible with the ECHR (as was done in the Hatton case). The court most probably considers the lack of effective enforcement to be equivalent to the absence of a regulatory scheme aiming at protecting individual's human rights and this in turn justifies that the court does not have to examine the compatibility of the scheme with the Convention.^¹⁹

If, supposedly, the Spanish local authority had been efficient in enforcing the regulatory scheme, then the ECtHR would have had to assess whether the regulatory scheme itself was compatible with the Convention. In doing that, the Court would have had to balance the competing interests: the interests of the individual residents of the area to enjoy a quiet night, and the wider interest of the entertainment industry.^²⁰ The result of such a balancing exercise would have been uncertain, since the ECtHR has indicated in Hatton that states enjoy a wide margin of appreciation in this field.^²¹

IV) Relevance for English law: damages for lack of effective abatement of noise nuisances that interfere with article 8 rights

The case of Moreno Gómez is important for English law because it can help establish the liability of local authorities when they fail to take effective action in cases of noise nuisances that are severe enough to amount to an interference with the right to home and family life.

a) Overview of the legislative framework on noise nuisances: Part III of the EPA 1990

The main statutory powers in England and Wales that have been given by parliament to local authorities in order to combat noise pollution are to be found in the Environmental Protection Act 1990 (EPA 1990) as amended and also in some other Acts.^²² For the sake of conciseness, we shall focus on the provisions of the EPA 1990 concerning noise nuisances. However, our findings can be applied mutatis mutandis when these other Acts are applicable.

Under the statutory nuisance scheme created by part III of the EPA 1990, where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an abatement notice on the person responsible for the nuisance under section 80 of the EPA 1990. An abatement notice may be drafted, at the discretion of the local authority serving it, so as 1) to require the abatement of the nuisance or prohibit or restrict its occurrence or recurrence, and/or 2) to require the execution of such works, and the taking of such other steps, as may be necessary to abate, restrict or remove the nuisance. Failure to comply with the terms of an abatement notice without reasonable excuse may result in prosecution in the Magistrate’s Court.^²³

Although enforcement may not always come through a local authority, as individuals can also take private enforcement action against statutory nuisances using the procedure provided for in section 82 of the EPA 1990, we shall only deal herein with enforcement mechanisms available to public authorities, as the ECHR is, in principle, only available in vertical relationships involving public bodies and private individuals.

As far as noise is concerned, there is a statutory nuisance, according to sections 79(1)(g) and (ga)^²⁴ of the EPA 1990, if noise (or vibrations) emitted from premises or from a vehicle, machinery or equipment in a street can be “prejudicial to health” or amount to a “nuisance”.

The term “nuisance” is not defined in the Act and thus one has to look at the common law of public or private nuisance to determine its meaning.

Noise amounts to a private nuisance if it is transmitted from the property of another and substantially interferes with the victim's enjoyment of his property.^²⁵

A public nuisance is any nuisance "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects" and in assessing this "it is sufficient to show that a representative cross-section of the class has been so affected”.^²⁶

Moreover, noise is prejudicial to health when it is likely to cause an injury.^²⁷ There are no cases focusing on what that could be, but it has been suggested that this should include sleep disorders and cardiovascular disorders.^²⁸

When there is evidence that a statutory nuisance exists, then local authorities have a statutory duty to decide whether on the balance of probabilities there is a statutory nuisance and if there is, then the local authority has a statutory duty to take abatement action.^²⁹

Although the EPA has created the above-mentioned mandatory statutory duties for local authorities to take abatement action if a statutory nuisance is proven to exist, the EPA 1990, in line with section 265 of the Public Health Act 1875,^³⁰ expressly confers immunity from civil liability not only on members and officers of local authorities personally, but also on the authority itself,^³¹ provided they have acted in good faith in discharging their duties under the EPA 1990. Paragraph 5 of Schedule 3 to the EPA 1990 provides that “Nothing done by, or by a member of, a local authority or by any officer of or other person authorised by a local authority shall, if done in good faith for the purpose of executing Part III, subject them or any of them personally to any action, liability, claim or demand whatsoever ...”^³²

Undoubtedly, this provision expressly excludes a civil action for breach of a statutory duty arising under Part III of the EPA 1990, if the authority has acted in good faith. No guidance is given in the EPA 1990 of how the good faith/bad faith distinction is to be drawn and there are no reported cases that had to consider this provision. One could, however, look for guidance in the very similar section 265 of the Public Health Act 1875. However, even then, as Bailey has pointed out,^³³ it is very difficult to find a clear definition of these provisions as relevant case-law, on the one hand, ranges from the 18^th century to the present date and, on the other hand, is very obscure and convoluted. It seems though that bad faith would include an element of dishonesty.^³⁴ This seems to indicate that the only liability actions that would not be barred would be the ones based on the tort of misfeasance in public office. This tort arises when an official person has deliberately acted in the knowledge that what has been done is unlawful and likely to cause damage or when he deliberately acts in a way to injure.^³⁵ This tort is thus of very limited help, as it is extremely difficult to prove the state of mind of the targeted official and, in any case, most illegal actions of local authorities would not be caught under this tort.

It is extremely unclear whether these statutory provisions limiting civil liability also provide immunity from actions based on negligence and if so, to what extent. In any case, it is clear that the aforementioned provision of the EPA 1990 is extremely restrictive and, in practice, almost completely prevents local authorities from being held liable for a breach of their statutory and other duties arising under the Act.

Moreover, since the powers and duties of local authorities in regards to nuisance are defined in the EPA 1990, it can be contended that the above-mentioned statutory limitation cannot apply when they act outside the ambit of these statutory powers. Such an example would be when an environmental health officer gives negligent advice to someone about the operation of the Act.^³⁶

c) The refusal of the Court of Appeal to recognise a duty of care under the EPA 1990

Traditionally in English law, public bodies upon whom statutory powers are conferred for specific purposes cannot be held liable in tort for the careless exercise of statutory powers or duties, unless the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient to found a cause of action in damages.^³⁷

The same seems to be true for a failure of a public authority to exercise powers granted to it by statute. Tortious liability can only arise if the statute can be interpreted as implying a duty of care at common law to arise.^³⁸

As far as the EPA 1990 is concerned, the Court of Appeal has expressly refused to interpret the statutory nuisance enforcement provisions of the EPA 1990 as creating a duty of care at common law, which would make the public authority liable to pay compensation for foreseeable loss caused by the exercise or non-exercise of the local authority’s enforcement power arising under the EPA 1990. In the case of Lam And Others v. Brennan And Borough Of Torbay^³⁹ it was claimed (alongside other matters) that the Council's failure to enforce an abatement notice served pursuant to section 80 of the Environmental Protection Act 1990 was a breach of a duty of care to the plaintiffs who were suffering from a serious nuisance and that thus the local authority was liable in damages.^⁴⁰ However, the Court of Appeal held that no such duty arose, as the provisions of the EPA 1990

… are plainly provisions for the benefit of the public at large living within the area of the local authority and, albeit, under s 80, service of an abatement notice is obligatory if the local authority is satisfied that a statutory nuisance exists, it is not mandatory for the local authority to take proceedings for an offence under s 80(4). Indeed, should it not see fit to do so, s 82(1) anticipates the right of any person "aggrieved by the existence of a statutory nuisance" to make complaint to a Magistrates' Court himself. Quite apart from that, the procedures in S79 and S80 exist in parallel with, and without any derogation from, the right of such a person to take private proceedings for nuisance against an adjoining landowner, whether for an injunction or damages. In those circumstances it seems to us plain that there is neither reason nor necessity in relation to such a landowner aggrieved by the failure of a local authority to take action in respect of a nuisance, to create a right of action in damages based on such failure.^⁴¹

This case demonstrates the reluctance of English courts to allow the enforcement of statutory duties by private actions for damages.

However, it is suggested that since the coming into force of the Human Rights Act 1998, which incorporates into English law the ECHR, and in light of the Moreno Gómez case, plaintiffs facing similar circumstances can now found actions for damages on section 8 of the HRA 1998.

d) Damages for failure to take effective enforcement against statutory nuisances interfering with human rights ?

First, one has to acknowledge that the ECtHR clearly indicated in the Moreno Gómez case that failure to take effective enforcement against noise nuisances that are serious enough to amount to an interference with article 8, is a breach of that article that leads to an award of damages against the responsible state.

If the same situation occurred in England, and there were noise nuisances (or any other kind of nuisances) serious enough to engage the right to protection of home, private and family life, then this would most certainly indicate the simultaneous existence of a statutory nuisance. This is because it seems from the case law of the ECtHR discussed above, that for article 8 to be engaged a nuisance has to affect in a severe way the health and well-being of individuals and this situation seems to be well encompassed within the definition of a statutory nuisance under the EPA 1990 as it also includes nuisances likely to cause injury to health. This is because, as discussed before, the definition of a statutory nuisance has two limbs: first the nuisance limb, which is about nuisance that would just amount to personal discomfort, and second, the prejudicial to health limb which is about nuisance likely to cause harm to health. According to the Moreno Gómez case it seems that only situations falling under the second limb of the statutory nuisance definition (i.e. nuisances that are prejudicial to health) would engage article 8 of the ECHR. This is because for article 8 to be engaged the interference with private or family life has to attain some degree of seriousness. However, it is suggested that noise which is not loud enough to cause injury to health but leads to the inability to open windows or sit in one’s garden can also lead to interferences with article 8 rights.

In any case, whenever article 8 is engaged because of a severe environmental nuisance, then there seems to be a mandatory duty under the EPA 1990 to take abatement action. If, however, a local authority fails to take effective enforcement action against the nuisance, the only available remedy by an aggrieved individual against the authority concerned would be an application for judicial review,^⁴² at least until the coming into force of the HRA 1998. The availability of a remedy of civil liability seems to have been so much limited by the EPA 1990 and the Court of Appeal case discussed above, that it would hardly ever arise in practice.

However, it is suggested that since the coming into force of the Human Rights Act 1998, persons falling into the same situation as Moreno Gómez can now choose to sue the local authority concerned (or even the environment health officer responsible),^⁴³ if they fail to take effective abatement action against the person or business causing a statutory nuisance that is so severe so as to amount to an interference with article 8 rights.

Because the Moreno Gómez case clearly establishes that ineffective enforcement action by public authorities against serious nuisances affecting family and private life is a breach of article 8 of the ECHR, this would mean that such a conduct by an English local authority would be in breach of section 6(1) of the HRA 1998, since this provision makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. And because according to section 8 of the HRA 1998, the Courts can now award damages to victims of an act of a public authority that is found to be unlawful under section 6(1) of the HRA 1998, lack of effective enforcement of a statutory nuisance could now lead to an award of damages under this Act.

A question that arises at this point is of the quantum of damages that English courts would have to award in such cases. Section 8(4) of the HRA 1998 provides that "In determining -- (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention". Consequently, the courts would have to apply the methods of calculation of damages used by the ECtHR. An overall examination of all of the ECtHR's case-law reveals that there are no uniform principles of calculation and damages are awarded on a case by case basis on an equitable basis.^⁴⁴ However, in cases of failure to take affective enforcement action against statutory nuisances causing an interference with article 8 rights, it can safely be contended that the Courts would have to undertake an assessment similar to the one done by the ECtHR in the Moreno Gómez case and award pecuniary damages equal to the cost of remedial action needed to alleviate the effect of the nuisance (like the cost of double-glazing), as well as non-pecuniary damages reflecting the level of the breach.

A final point that needs to be examined is whether the aforementioned paragraph 5 of Schedule 3 to the EPA 1990 can bar actions in damages based on the HRA 1998. It is suggested that this is improbable for two reasons.

First, the HRA 1998 applies to all public authorities including the Courts and thus the duty contained in section 6(1) of the Act that it is unlawful for a public authority to act in a way which is incompatible with a Convention right except if such a conduct is prescribed by primary legislation, has to be discharged by the Courts too. So, if a Court were to find that civil liability actions under the EPA 1990 were inadmissible because of the above provision even in instances were there was a breach of article 8 rights, then the Court would also be breaching the ECHR itself as it would fail to provide an effective remedy and so it would breach the HRA 1998 too. It should be noted that in such a situation, the defence of section 6(2) of the HRA 1998, namely that the Court could not have acted differently as the result of one or more provisions of primary legislation, would be inapplicable. This is because it seems possible for Courts to interpret the "good faith" element found in para. 5 of Sched. 3 to the EPA 1990 as meaning that it does not cover cases where human rights have been breached. The Courts would be free to take such an approach as there is no legislative definition of these terms.

Second, the same result can be reached if one uses section 3 of the HRA 1998. Under this provision Courts are under a duty to read and give effect to primary and subordinate legislation "so far as it is possible to do so" in a way which is compatible with Convention rights. As demonstrated above, para. 5 of Sched 3 to the EPA 1990 contains terms vague and imprecise enough to be possibly read in conformity with the ECHR.

It is hoped that it has been shown that the Moreno Gómez case has important implications as to how section 8 of the HRA 1998 has to be applied in cases where the right to family and private life has been violated because of the failure of a local authority to take abatement and enforcement action against a statutory nuisance that is serious enough to amount to an interference with this human right.

In such situations, it has been suggested that the statutory protection from civil liability found in the EPA 1990 is not to be applied, as this would also frustrate the aim of the HRA 1998, which is to make available in domestic law the remedy of damages for breaches of human rights. Also, even if it was held in Lam And Others v. Brennan And Borough Of Torbay that the policy of the EPA 1990 does not create any duty of care at common law to persons having incurred foreseeable loss as a result of the non-exercise of enforcement powers under the statutory nuisance provisions of the EPA 1990 and that thus no damages can be recovered, such claims can now be founded upon the HRA 1998.

Finally, it is important to note that the above analysis shows how the HRA 1998 can now provide remedies which were unavailable before its coming into force under English law, especially when there exists a statutory limitation on civil liability claims against a public authority or when the existing remedies arising under the common law are extremely limited.

6The Amparo appeal procedure is a special procedure provided for in article 53 par. 2 of the Spanish Constitution of 1978, according to which any citizen who thinks that his fundamental rights have been violated may assert a claim to protect these rights by means of a preferential and summary procedure before the ordinary courts and, when appropriate, by lodging an individual appeal for protection (recurso de amparo) to the Constitutional Court. For more details see Lozano B., Plaza C., Rapports: Spain: The Greening of Fundamental Rights and the Post-Constitutional Act on the Right to Petition, 8 [2002] 4 European Public Law 455.

13Article 8 of the ECHR:

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.

19A similar reasoning was applied by the High Court in the case of Dennis v Ministry of Defence [2003] J.P.L. 1577. In this case Buckley J. held that noise nuisance caused by military aircraft was in breach of ECHR rights as a fair balance could not have been achieved in the complete absence of any regulatory scheme limiting such nuisances and providing for some sort of enforcement or compensation. Damages were awarded under the common law of private nuisance. However, the Court added that if the common law of nuisance did not provide such a remedy the action would succeed under both article 8 and article 1 of the first protocol on the protection of property.

20The applicant, in her submissions to the Court, argued that the balance should be struck in her favour, as contrary to the facts in Hatton, her home was neither within nor adjacent to an area of vital importance, such as an area relevant to a strategic transport or communications infrastructure like Heathrow, but on the contrary her home was in an urban residential area. However, the court did not assess the merits of this claim as it found a violation of article 8 without having to undertake such a balancing exercise. See par. 49 of the judgment.

21This was confirmed by the ECtHR in the subsequent case of Ashworth v United Kingdom (case 39561/98, January 20, 2004) [2004] 3 E.H.R.L.R 330, in which the admissibility of a complaint that the noise disturbance caused by a privately owned and operated aerodrome interfered with the applicants' rights under the Art. 8 was considered. The court struck out the case as inadmissible because it was held that the UK Government's approach to local leisure flying, namely its policy that aerodrome issues are to be resolved locally and also the relevant legislative framework (the Civil Aviation Act 1982), maintained a fair balance between competing interests.

22Apart from the EPA 1990, there are some other Acts granting specific powers to local and other authorities to combat specific types of noise nuisances like, for example, the Noise Act 1996 in respect of noise emanating from dwellings at nights, the Control of Pollution Act 1974 in respect of noise from construction sites (s. 60 and 61) and loudspeakers in streets (s. 62), and the Civil Aviation Act 1982. Noise can also be combated using powers arising under the common law of public nuisance and private nuisance. See on all these Malcolm & Pointing, above n. 3, Ch. 6: Noise and noise nuisance, pp. 83-117.

23On the offence of breaching an abatement notice and the two defences available in statutory nuisance criminal proceedings, first that “the best practicable means were used to prevent, or to counteract the effects of, the nuisance” (s. 80(7) EPA 1990) and second the existence of a “reasonable excuse” (s. 80(4) EPA 1990), see Malcolm & Pointing, above n. 3, Ch. 15, pp. 249-265.

25See Malcolm and Pointing, above n. 3, p. 91. Also in the case of Murdoch v Glacier Metal Co Ltd [1998] Env. L.R. 732, the Court of Appeal held that noise exceeding the maximum level recommended by WHO did not necessarily constitute an actionable nuisance. When deciding whether the noise is sufficiently serious to amount to a nuisance the standards of the average person and the character of the neighbourhood can be taken into account. In this case the Court of Appeal accepted that the lack of complaints by other local residents and the presence of a bypass in close proximity to the claimant’s home were relevant considerations in order to asses whether a nuisance exists.

30S. 265 of the Public Health Act 1875 provides that “No matter or thing done, and no contract entered into by any local authority or joint board or port sanitary authority, and no matter or thing done by any member of any such authority or by any officer of such authority, or other person whomsoever acting under direction of such authority, shall, if the matter or thing were done or the contract were entered into bona fide for the purpose of executing this Act, subject them or any of them personally to any action liability claim or demand whatsoever; ...”. For a commentary of this section see S.H. Bailey, Personal Liability in Local Government Law, [1996] P.L. 461.

31Strangely, section 12(1) of the Noise Act 1996, although it concerns similar matters provides immunity from civil liability only for members or officers of local authorities and not the authority itself. This provision states that: “A member of a local authority or an officer or other person authorised by a local authority is not personally liable in respect of any act done by him or by the local authority or any such person if the act was done in good faith for the purpose of executing powers conferred by, or by virtue, of this Act.”

32This section continues and provides an exception to this rule that only concerns the personal liability of members of local authorities to make payments under s. 17 and s. 18 of the Audit Commission Act 1998, which is not relevant for present purposes. The omitted part of para. 5 of Sched 3 to the EPA 1990 reads: "…(other than any liability under section 17 or 18 of the Audit Commission Act 1998 (powers of district auditor and court))".

36For an example of such a negligence case arising however under food safety legislation, see the case of Welton & Anor v. North Cornwall District Council [1997] P.N.L.R. 108 CA (Civ Div), in which it was held that an environment health officer of a local authority was under a duty of care not to negligently advise or direct a person as to what was required to achieve compliance with the Food Safety Act 1990 and the Food Act 1984, within the principle enunciated in Hedley Byrne & Co. Ltd v. Heller & Partners [1964] A.C. 465. The Court held that the existence of a statutory duty to safeguard public health did not exclude a duty of care where a local authority official negligently advised or directed a person as to what was required to achieve compliance with statutory provisions. The Court considered the fact that in making those statements the officer had acted far outside the ambit of his statutory powers and duties. It should, however, be noted that the situation is somehow different under these Acts to the situation under the EPA 1990, since s. 44 of the Food Safety Act 1990 (similarly to s. 116 of the Food Act 1984) provides protection from civil liability claims for officers of local authorities if they acted “(a) in the execution or purported execution of this Act; and, (b) within the scope of his employment, if he did that act in the honest belief that his duty under this Act required or entitled him to do it” , but also expressly mentions that this provision does not relieve local authorities from any of their civil liabilities for acts done by their officers.

37See Halsbury's Laws of England, Administrative Law, paras. 186 and 189. See also the case of X (Minors) Appellants v. Bedfordshire County Council Respondents [1995] 2 A.C. 633 in which Lord Browne-Wilkinson stated that “In my judgment the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient.”, at 734-735.

38As was held by Potter LJ in the Court of Appeal case of Lam And Others v. Brennan And Borough Of Torbay [1997] P.I.Q.R. 488 “The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed.”, at 498.

43It seems that an aggrieved person could also sue the officer responsible for the damage sustained, even though the HRA 1998 only applies to public authorities, since it was accepted by the Court of Appeal in Abdul Hakim A v. The Head Teacher, Governors of Lord Grey School [2004] EWCA Civ 382, that a headteacher is also a public authority under the HRA 1998 and can be sued for breaches of human rights arising under the Act. Sedley J. held that: “Although in contractual terms the headteacher is simply the first among equals, there is no institutional sense in which her functions are private or sectional. They are publicly funded; they are directed by statute to the purposes of an institution designed to serve the community and for which the larger responsibility rests on both central and local government. The contra-indications-that the headteacher holds no formal office and is a local government employee -- do not seem to me sufficient to displace these factors. While I confess even so to a visceral unease at the conclusion that the headteacher of a maintained school is a public authority for the purposes of the Human Rights Act, it seems to me on balance that the concession was rightly made. What may in the end matter more is that it is the governing body, about which I have no such no such reservations, which is also legally responsible and must in practice answer for the school's defaults.” (at par. 38). This decision seems to indicate that an environment health officer could also be considered as a public authority under the HRA 1998 and held liable to damages for ECHR violations. However, in the majority of cases, plaintiffs, for obvious reasons, would choose to sue the local authority itself.

44See Wade & Forsyth, Administrative Law, Oxford University Press, 9^th edition, 2004, at p. 749. See also the Court of Appeal case of Anufrijeva and another v Southwark London Borough Council; R (on the application of N) v Secretary of State for the Home Department; R (on the application of M) v Secretary of State for the Home Department, [2003] EWCA Civ 1406 which indicates how damages have to be assessed under the HRA 1998 and what is the correct procedure to be followed in damages claims arising under the Act.