5 August 2002
The Government's six regional consultation papers published on 24 July address the expected increase in demand for passenger flights and the resultant increase in the size of airports, number of runways and total flights; they predict an 80 per cent rise in passenger movement at Heathrow alone by 2030, with over 500 extra flights per day.
Unless extra flight frequency and shorter allocated slots are to absorb the whole increase, this prediction must imply more night flights and so more sleep disturbance for those living in the flight paths, which with more runways, will widen further.
Less widely known may be the Government's submissions to the European Court of Human Rights, due on 31 July, in the case of Hatton & ors v UK, concerning noise nuisance from night flights at Heathrow between 1993 and 1997. This is one legal destination worth revisiting. Mrs Hatton and seven others complained that the noise made sleep impossible and so badly interfered with their lives that their right to respect for home and private life, protected by the European Convention on Human Rights, was breached. The complaint was upheld in Strasbourg on 2 October last year in a decision described as establishing the right to a "good night's sleep".
The Government is appealing the decision and a Grand Chamber of the European Court of Human Rights, comprising 17 judges and three substitutes, will decide whether night flight noise nuisance gives a right to compensation following a hearing on 13 November 2002. This delay of more than a year after the original decision not only delays payment of the £4,000 compensation plus costs that the chamber awarded to Hatton and the others, it also raises a tricky procedural problem for any other would-be claimants under the limitation provisions of the Human Rights Act (HRA).
Since Hatton, the HRA has introduced the opportunity for 'Hatton claims' before the English and Scottish courts. Hatton and the other applicants were able to argue in Strasbourg that they had no domestic remedies to exhaust, before lodging their European applications. Local authorities had challenged the night flying regulations by judicial review on narrow rationality grounds, but failed (R v Secretary of State for Transport, ex parte Richmond LBC (1996)). Now, under the HRA, anyone who can claim to be a 'victim' of a breach of the right to 'respect' for their home and private life, which is the HRA convention right at issue, can bring a claim.
The shift in claimant is significant. Local authorities may struggle to fulfil the victim requirement, whereas anyone whose sleep is affected may have an HRA claim. Individuals may be less willing or able to take on the litigation burden; but as Section 8 of the HRA gives a potential claim to damages, which Hatton underlines, individuals can better show loss than a local authority and so be more appropriate claimants.
The Hatton criteria for recovery appears generous, even if the quantum is modest. The critical feature of the first instance judgment is its emphasis on the inadequate material available on which to assess the Government's contention that night flights represent an important economic benefit, outweighing the noise nuisance disamenity to the applicants. Future HRA claims will have to develop procedures for litigating these issues as well as more familiar problems, such as remoteness criteria and whether claimants can recover for special damage.
More difficult to determine is the policy question: how the 'polluter pays' approach is to be reconciled with the structure of the HRA. Applying Hatton as a matter of economics under the 'polluter pays' approach, those who authorise night flights must pay compensation to those affected and may then continue to authorise the polluting. However, Section 6(1) of the HRA makes it unlawful for a public authority to act in a way that is incompatible with a convention right; this may mean that it cannot authorise such flights, even if it were prepared to compensate those affected who complained about them.
Before these questions are resolved, claimants following Hatton will need to remember the one year maximum limitation period under the HRA. Although the outcome of the appeal may be uncertain and will remain open beyond 1 October 2002, for the present, Hatton is an authority to which the English courts should have regard under Section 2(1) of the HRA.
Claimants will do well not to sleep on their rights.