Two recent decisions – relating to Heathrow night flights and to the operation of Harrier jets at RAF Wittering – have shed further light on the application of human rights in the context of aircraft noise.

The first is the Grand Chamber judgment in the case of Hatton and Others v the United Kingdom. The judgment is the most recent development in the long running disagreement between local residents and the UK Government relating to Heathrow night noise.

In the days prior to the introduction of the Human Rights Act 1998, eight local residents raised their grievances about Heathrow night noise in an application to the European Court of Human Rights ("ECHR"). The applicants’ main arguments were based on Article 8 of the European Convention on Human Rights (the "Convention") which contains the right to respect for private and family life subject to certain public policy grounds, including the economic wellbeing of the country and the protection of the rights and freedoms of others.

The ECHR held that Article 8 involved a balancing of interests in which the UK Government had a margin of appreciation. However, in the field of environmental protection, mere reference to the economic well being of the country is not sufficient to outweigh the rights of others. States are required to minimise interference with rights by generally seeking to achieve their aims in the least onerous way as regards human rights. The UK Government had insufficiently comprehensive information on the economic value of night flights and on their effect on sleep and was not properly equipped to balance competing interests. Article 8 of the convention had therefore been breached.

Essentially, the judgment meant that rigorous research had to be carried out before a decision was taken in order to comply with Article 8 of the Convention. The UK Government, concerned at the onerous nature of this requirement, appealed to the ECHR’s Grand Chamber. On 8 July 2003, the Grand Chamber determined (by a majority of 12 votes to 5) that the UK Government had not breached Article 8. The UK Government had not overstepped its margin of appreciation. It was reasonable to assume that night flights contributed at least to a certain extent to the general economy and that where a limited number of people in an area are particularly affected by a general measure, the fact that they can, if they so choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure.

The second case is Dennis v Ministry of Defence, in which it was successfully demonstrated that the noise caused by low- flying Harrier fighter aircraft based at RAF Wittering constituted an actionable nuisance.

The Court held that the noise levels experienced by the claimants from the jets were extreme. The noise affected the use and enjoyment of the claimant’s country house and 1,400 acre estate and caused a diminution in its market value. The claimants had complained about the noise problem for over 15 years.

Although there was an unreasonable interference, the Court held that there was an overwhelming national interest in the training of Harrier pilots and thus declined to make a declaration that the nuisance be abated. However, because the claimants should not be required to bear the cost of the public benefit, the Court awarded damages of £950,000.

Although decided on the basis of common law nuisance, the claim was also based on the Human Rights Act 1998, alleging breaches under Article 8 and Article I of the First Protocol of the ECHR. The judge stated that if the claim in nuisance had failed, the claim based on infringement of human rights would succeed and attract the same damages award.

These two cases indicate that whilst the Courts recognise the need to safeguard human rights in the context of aircraft noise, the perceived wider public and economic benefits of aircraft operations will not readily be disregarded.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.