AS TO THE ADMISSIBILITY OF. Application No /97 by Anwara KHATUN and 180 Others against the United Kingdom

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1 AS TO THE ADMISSIBILITY OF Application No /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 Mrs MM Mrs Mr Mrs M.P. PELLONPÄÄ, President N. BRATZA E. BUSUTTIL A. WEITZEL C.L. ROZAKIS J. LIDDY L. LOUCAIDES B. MARXER B. CONFORTI I. BÉKÉS G. RESS A. PERENIC C. BÎRSAN K. HERNDL M. VILA AMIGÓ M. HION R. NICOLINI 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 /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.

2 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 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 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

3 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

4 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

5 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

6 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 illfounded 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

7 "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 illfounded 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 illfounded 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 Secretary to the First Chamber M.P. PELLONPÄÄ President of the First Chamber

AS TO THE ADMISSIBILITY OF

AS TO THE ADMISSIBILITY OF Application No. 36773/97 by Herwig NACHTMANN against Austria The European Commission of Human Rights (First Chamber) sitting in private on 9 September 1998, the following members