Environment: does the HRA protect the environment?

The lack of any express reference to the environment in the European Convention on Human Rights (ECHR) has not prevented its use in an environmental context, as imaginative lawyers have found ways to interpret its provisions so as to be a useful tool for environmental challenges.

When the Human Rights Act 1998 (HRA) came into force in 2000, incorporating the ECHR into English law, Article 8 was identified by most commentators as the first port of call for those seeking to stop, or hinder, potentially polluting developments or operations. Two years later on, Article 8 has not proved to be quite the thorn in the side of the business community that some predicted. Nevertheless, Article 8 has produced some significant developments.

Article 8 and the environment

Article 8 protects the "right to respect for … private and family life [and] home …". The link between this right and the environment is not obvious. It is the focus on "home" which is the key. In several cases over the last few decades, the European Court of Human Rights has found that pollution of varying sorts, which seriously affects the quality of life in a person's home, can interfere with Article 8 rights. The most important breakthrough came with the case of Lopez Ostra v Spain, where the court held that Article 8 was breached when a particularly foul smelling tannery waste treatment plant was built 12 metres from the complainant's apartment block. The case established that "severe environmental pollution may interfere with Article 8 rights" even where serious detrimental health effects are not proven. The operations of many UK businesses have potential to affect adversely the quality of people's lives in their homes. However, the first case to use the HRA to try to challenge such operations indicates that the UK courts are setting a high threshold in determining whether pollution interferes with Article 8 rights. R v Hampshire CC ex parte Vetterlein was a challenge by local residents to planning permission for a Southampton incinerator. They claimed that the resulting NO2 emissions, when combined with the already high ambient NO2 levels in the Southampton area, would breach their Article 8 rights. The High Court was far from convinced and in rejecting the claim stated that "general environmental concerns do not engage Article 8".

Justification

Further, establishing an "interference" with Article 8 does not guarantee that a challenge to a polluting development, or activity, will be successful. Article 8 is a "qualified right". This means that the "interference" will be permissible if it is "justified" on one of a number of specified grounds, including "the interests of the economic well-being of the country". As most challenges are to developments, or operations, either undertaken by, or used by, the business sector, establishing some kind of benefit to the economy is not normally problematic. However, two recent cases involving Article 8 indicate that the courts are taking a more robust approach to justification. Anyone seeking to justify an interference with Article 8 rights will need to do much more than prove the mere existence of economic benefits.

In Marcic v Thames Water Utilities the Court of Appeal confirmed the High Court decision that the flooding of a man's home by foul water from an overloaded sewer was not only an interference with his Article 8 rights, but also was not justified. Thames Water argued strongly that its prioritisation scheme for capital works was sufficient to "justify" the interference because it balanced the competing interests of other customers, the costs involved and company resources. The Court of Appeal, seemingly influenced by the poor treatment Mr Marcic received and the total hopelessness of his position under existing statutory mechanisms, did not agree that a fair balance had been struck and awarded him damages. In view of the potentially huge resource implications this may have for water companies, Thames Water is appealing to the House of Lords. It will certainly have an uphill struggle to persuade their lordships to overturn the well-reasoned Court of Appeal judgment.

Hatton v UK was a challenge by residents of West London to the UK Government's policy of allowing night flights at Heathrow Airport. They argued that the noise and consequent sleep deprivation breached their Article 8 rights. Having failed to gain a remedy in the UK courts they took their case to the European Court of Human Rights. It was no great surprise that the court found the noise to be an interference with the complainants' Article 8 rights. What was unexpected was the court's decision on justification. It scrutinised the arguments and evidence put forward by the UK as to why the disturbance caused by the flights was justified. The court found there was insufficient evidence to assess properly the extent to which night flights contribute to the economy as a whole and only limited research had been carried out into the nature of sleep disturbance thereby caused. It held that the UK had failed to justify the interference and the night flights were therefore in breach of Article 8. The UK Government has now challenged the ruling. A Grand Chamber of the European Court of Human Rights reconsidered the case in November 2002. Judgment is awaited. There is a real possibility that the Grand Chamber will decide the original judgment overstepped the mark and will hold that the UK's policy on night flights was in fact within its margin of appreciation. Whatever the outcome of the appeal, some lessons can be learned from the comments on justification in the original judgment.

Implications for business

These cases show an increased willingness on the part of the courts to be drawn into the thorny issue of justification and, in particular, to analyse critically the evidence put forward as to economic benefits. Anyone defending an Article 8 challenge, or involved in a project that may be subject to an Article 8 challenge, should consider the need to take into account the following points:

• Developments or operations that seriously impact on the quality of life of people in their homes may be subject to challenge under Article 8.
• The fact that such a development or operation is not specifically prohibited by statute or common law, or even is authorised by a licence or permission granted under statute, does not preclude an Article 8 challenge.
• If a challenger has an arguable case that the "interference" falls within Article 8, it will be necessary to put forward arguments and evidence as to why the interference is justified.
• More than mere lip service must be paid to justification – the courts will be looking for serious evidence.
• The courts will consider whether the degree of "interference" is proportionate to the economic benefits gained – another reason for the need to adduce evidence as to the level, and not merely the existence, of economic benefits.
• The European Court has suggested evidence should be put forward showing consideration of alternative options; the least onerous as regards human rights should be chosen. These alternative options will include the payment of compensation to individuals impacted or the taking of mitigating measures to lessen their suffering.

It would be wrong to assume that the ECHR means that an individual's right for respect for their quality of life within their homes is sacrosanct. However, the courts are reluctant to see such individuals suffer a degradation of their rights with no compensation or mitigating measures taken to help them. The requirement for "justification" under Article 8 gives the courts an express mandate to strike a balance between the competing interests of the individual and the community. In doing so the courts are not willing to see individuals suffer unfairly (without compensation) for the benefit of the rest of the community.

For further details please contact David Short at [email protected] or on +44 (0)20 7367 2535.