Traffic noise and human rights

Last year's judgements of the European Court of Human Rights concerning night-time aircraft noise around Heathrow and of the House of Lords in the Marcic decision on sewerage overflows put a substantial brake on human rights claims raising environmental issues. Nonetheless, the High Court recently refused to strike out a human rights claim against a local authority for compensation for noise from increased traffic resulting from the making of a traffic regulation order.

Andrews v Reading Borough Council (Queen's Bench Division, High Court [2004] EWHC 970, 29 April 2004), concerned a traffic regulation order made by the council which was designed to speed up traffic flows and improve bus journey times.

Mr Andrews claimed that as a result traffic levels and noise in his street had increased, and sought just over £4,000 in compensation from the local authority to cover the costs of installing noise insulation in his property. His claim was based on a breach of human rights, and in particular Article 8 of the European Convention providing respect for an individual's private and family life and home.

Under the Noise Insulation Regulations 1975, local authorities possess a discretion to provide grants for noise insulation where traffic increases, but this power applies only where there is a physical alteration of the highway, which was not the case here.

Although the sum claimed was small, the local authority was clearly concerned that the case could set a precedent for other traffic regulation orders, and sought to have it struck out on the grounds that there was no realistic prospect of success, especially in the light of the Heathrow and Marcic judgements (ENDS Reports 343, pp 50-51 , and 347, pp 60-61 ).

Much of the decision was concerned with whether this type of claim should be heard in the Administrative Court by way of judicial review, but Mr Justice Collins concluded that it was appropriate as an ordinary civil claim, preferably in the county court.

As to the question of striking out, the court had to assume that the facts asserted by the claimant could be proved. Mr Justice Collins accepted that noise resulting from schemes implemented by public authorities was capable of interfering with private life within the meaning of Article 8 of the Convention: "I have no doubt that an increase in traffic noise which seriously affects an individual may engage Article 8. Whether the increased level of noise in this case does cross the threshold is a matter of fact which will depend on the assessment of the claimant's and his family's evidence coupled with the objective evidence of the actual levels."

However, as the Heathrow case demonstrated, a breach of privacy rights under Article 8 may be justified by the public interest criteria specified in Article 8(2), and public authorities are to be afforded a large degree of discretion in weighing up the competing interests of the individual and the community.

In the Heathrow case, the scope and availability of noise insulation schemes were relevant factors in determining whether the Government had taken a proportionate approach.

In this case, the local authority argued that the 1975 scheme indicated that Parliament did not intend to provide compensation for this type of order, but Mr Justice Collins doubted whether Parliament in the 1970s could be said to have considered proportionality within the meaning of Article 8.

In the Marcic case, the claim had been dismissed because the House of Lords considered that the water regulator had been expressly entrusted with weighing up the balance of private and public interests. Again, Mr Justice Collins doubted whether the situation was similar here. In his view, the absence of any possibility of a grant under the 1975 regulations might mean that interference with an individual's rights was not justified.

The court was not persuaded that the case should be struck out at this stage on the grounds that there was no real prospect of success, though Mr Justice Collins noted that the claimant would still have hurdles to surmount and might not succeed in the end.

In relation to the traffic order in question, no other claims were lodged within the 12-month limitation period. Nevertheless, local authorities around the country will undoubtedly be taking a close interest in the case assuming it goes to trial and that it is not settled without prejudice.

Richard Macrory, Professor of Environmental Law, University College, London

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