EHRM, 26-02-2008, nr. 37664/04

The applicants, Mr Lars Fägerskiöld and Mrs Astrid Fägerskjöld, are Swedish nationals who were born in 1942 and live in Jönköping. They were represented before the Court by Mr H. Sundström, a lawyer practising in Ljungskile.

The Swedish Government (‘the Government’) were represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs.

The applicants complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that the continuous, pulsating noise from the wind turbine and the light reflections from its rotor blades interfered with their peaceful enjoyment of their property and made it impossible for them to enjoy their private and family life. They had bought the property for recreational purposes but the nuisance from the wind turbine had made it difficult to sit outside for long periods of time. Moreover, no independent noise investigation had been carried out despite their repeated requests for one. They further claimed that, as a result of the nuisance, the value of their property had decreased. Lastly, they complained under Article 13 of the Convention that, as the Environment Committee's decision of 4 November 1997 had been taken without their involvement, they had been deprived of an effective domestic remedy for their Convention complaints.

The applicants complained that their right to enjoy their private and family life in accordance with Article 8 of the Convention had been infringed by the very disturbing, continuous noise from the wind turbine and the reflections of light from its rotor blades. In so far as relevant, this provision reads:

The Government first submitted that this complaint should be declared inadmissible for non-exhaustion of domestic remedies since the applicants had not availed themselves of all opportunities at the national level. In particular, a decision by the municipality to refuse a request to carry out a noise investigation could have been appealed against to a county administrative board and then to the environmental courts. The Government further questioned whether the second applicant could be said to have exhausted any domestic remedies since she had not formally been a party to the national proceedings.

In any event, the Government argued that the complaint under Article 8 of the Convention should be declared inadmissible ratione materiae because the property was only used for recreational purposes and thus could not be considered to fall under the notion of ‘home’ in the first paragraph of Article 8. Furthermore, they submitted that the noise and reflections of light complained of by the applicants were not so serious that they attained the level of severity required by the Court's case-law to fall within the sphere of Article 8. In this respect, they emphasised that the noise level at the applicants’ property had been measured at 39.4 dB for all three wind turbines together, which was below the recommended maximum level of 40 dB for residential areas. They further observed that it had not been demonstrated that the operation of the wind turbines had adversely affected the applicants’ mental or physical health.

However, if the Court were to consider that Article 8 was applicable to the present case, the Government contended that the complaint was manifestly ill-founded. They first noted that it was correct that the applicants had not been invited to submit their opinion prior to the decision adopted on 4 November 1997 by the Environment Committee but, since that building permit had never been acted upon, it had ceased to apply. Moreover, the applicants had been invited to comment on the new application for a building permit on the new location for the third wind turbine before the Environment Committee adopted its decision on 23 June 1998. Thus, the Government considered that the fault committed in the first proceedings had been remedied in the new proceedings concerning a building permit for the third wind turbine. They also observed that it was not in contravention of Swedish law to grant a building permit retrospectively and that the first applicant had made full use of his opportunities to appeal against the Environment Committee's decision to the County Administrative Board and further to the administrative courts.

The Government then noted that, although the municipality had not arranged for a noise investigation to be carried out, it had not ruled out such an investigation being carried out in the future if there was a need. In any event, there was no legal requirement for a noise investigation to be carried out before granting a building permit even though they admitted that a noise test was recommended by the NBHBP (see ‘Relevant domestic law and practice’ above). In the present case, the Government observed that noise tests had been submitted by the Joint Wind Association to the Environment Committee before its decision in June 1998. These calculations, which included the applicants’ property, had been carried out in accordance with the recommendations issued by the NBHBP. The Government emphasised that the applicants had not presented any evidence of noise levels exceeding the recommended levels.

Thus, the Government maintained that the alleged interference with the applicants’ rights under Article 8 was in accordance with the law and pursued the legitimate aim of protecting the economic well-being of the country and the rights and freedoms of others by contributing to the sustainable development of Sweden's natural resources and ensuring that its citizens could live in a safe and peaceful environment.

Lastly, the Government contended that the necessity criterion set out in Article 8 § 2 of the Convention had been fulfilled, as wind power is a renewable source of energy considered to be environmentally friendly and to contribute to the sustainable development of society. The Government noted that the Environment Committee had also imposed certain temporary measures in its decision of 23 June 1998 aimed at reducing the noise from the wind turbine, and that these measures had been renewed. Moreover, both the County Administrative Board and the County Administrative Court had visited the applicants’ property to form their own opinion on the alleged noise disturbance before reaching their decisions. Thus, having regard to the wide margin of appreciation accorded to the Contracting States in matters raising environmental issues, the Government were of the opinion that the national authorities and courts had struck a fair balance between the public interest and that of the applicants in the instant case. Besides, the Government pointed out that the applicants still had the opportunity, in accordance with the Environment Code, to request further measures from the municipality, including a noise investigation, and had in fact been reminded of this by the County Administrative Board in its decision of 14 April 1999. Therefore, in conclusion, the Government contended that the complaint was manifestly ill-founded.

The applicants maintained that their rights under Article 8 of the Convention had been infringed. They firstly stated that both of them had complained about the third wind turbine to the Environment Committee and that, although the first applicant had handled the further complaints alone due to the second applicant's heavy work schedule, they had been in agreement on how to deal with the complaints and appeals. They further claimed that the noise tests that had been carried out were simple ‘sales promotion’ by the Joint Wind Association and were not comparable to a professional noise investigation carried out by an independent accredited agency. In this respect, they pointed out that noise reflection among houses could normally raise the noise level by three to five decibels and that the noise also depended on the weather, such as the humidity of the air and the wind speed. They reiterated that they had requested a proper noise investigation on several occasions but that this request had been ignored and most times not even put on record by the authorities. Moreover, their complaints with regard to the reflections of light from the rotor blades had essentially been ignored even though they were very disturbing. The applicants considered that the measures taken by the Joint Wind Association had had no effect and, in any event, claimed that they had been ‘forgotten’ after the first two years. To them, it was clear that the Environment Committee and the Joint Wind Association were cooperating and protecting their economic interests rather than the well-being of the neighbours to the wind turbine and the living environment. Their quality of life and health were strongly affected by the pulsating sound from the rotor blades and their light reflections.

The Court first notes that the Government questioned the second applicant's locus standi before the Court and also objected to the admissibility of the complaint on the ground that the non-exhaustion requirement as set out in Article 35 § 1 of the Convention had not been complied with. The Court, however, considers that it need not resolve these issues as the complaint is, in any event, inadmissible for the reasons set out below.

The Government submitted that the applicants’ complaint did not fall within the ambit of Article 8 of the Convention as the house on Hästholmen 1:17 was not their permanent residence but their place of leisure.

In this respect, the Court observes that the applicants have relied on their rights to ‘private and family life’, not to their ‘home’. However, irrespective of this, the Court reiterates that the essential object and purpose of Article 8 is to protect the individual against arbitrary interference by the public authorities (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251‑B, § 31). Moreover, it notes that in its relevant case-law it has adopted an extensive interpretation of the notions of ‘private life’ and of ‘home’ (see, inter alia, Niemietz, cited above, §§ 29–30, and Demades v. Turkey, no. 16219/90, § 33, 31 July 2003). Hence, in the Demades case, the Court considered that it might not always be possible to draw precise distinctions, since a person may divide his time between two houses or form strong emotional ties with a second house, treating it as his home. Therefore, a secondary house, which is fully furnished and equipped and used, inter alia, as a holiday home, can qualify as a ‘home’ within the meaning of Article 8 (§§ 31–34). The Court finds no reason to depart from this extensive interpretation of the notion of ‘home’, noting that the applicants in the present case have been the owners of Hästholmen 1:17 for almost 20 years and have used it as a second home. Consequently, this requirement is fulfilled.

However, the Court observes that the Government have also argued that the level of severity needed to fall within the scope of Article 8 in cases concerning environmental issues has not been attained in the present case.

In relation to this, the Court recalls that there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8 (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII). Specifically, Article 8 of the Convention applies to severe environmental pollution which 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, even without seriously endangering their health (see, among others, Taşkın and Others v. Turkey, no. 46117/99, § 113, ECHR 2004‑X).

Thus, the Court has found Article 8 to be applicable in, among others, the following circumstances. In López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C) the applicant lived for years only twelve metres from a waste-treatment plant which emitted smells, noise and fumes, including hydrogen sulphide emissions which exceeded the permitted limit and could endanger the health of those living nearby. In Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I) all the applicants lived in a village approximately one kilometre away from a factory which was classified as being high-risk as, in the course of its production cycle of fertilisers and caprolactam, it released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. In addition, because of the factory's geographical position, emissions from it into the atmosphere were often channelled towards the village. Similarly, in Taşkin and Others (cited above) the applicants lived in villages situated near a gold mine where gold was extracted by sodium cyanide leaching and the Turkish Supreme Administrative Court had found that this represented a threat to the environment and the right to life of the neighbouring population. Likewise, in Fadeyeva v. Russia (no. 55723/00, ECHR 2005‑IV) the applicant lived 450 metres from the site of a steel plant (the largest iron smelter in Russia), within the delimited area in which the toxic pollution caused by steel production was excessive and where the maximum concentrations of pollutants registered near the applicant's home were often ten times higher than the average annual concentrations, which were already above safe levels. Moreover, in Giacomelli v. Italy (no. 59909/00, 2 November 2006) the applicant lived 30 metres away from a plant for the storage and treatment of ‘special waste’, including the ‘detoxification’ of hazardous waste, a process involving treatment of special industrial waste using chemicals. The operation of the plant had been found to be incompatible with environmental regulations by the Ministry of the Environment. In Moreno Gómez v. Spain (no. 4143/02, ECHR 2004‑X) the applicant lived in a residential area with licensed bars, pubs and discotheques in the vicinity of her home where the noise levels were measured in excess of 100 dB at 3.35 a.m. on Saturdays, although the legal maximum noise level was 45 dB between 10 p.m. and 8 a.m. The noise caused the applicant insomnia and serious health problems. Also, in Hatton and Others (cited above) the applicants, depending on the location of each of their homes in relation to Heathrow airport, were exposed to a noise level from aircraft disturbance of between 57 and 66 dB LAeq (the average degree of community annoyance from aircraft noise over a sixteen-hour daytime exposure). Moreover, the maximum ‘average sound exposure’ suffered by each applicant was calculated at between 83.4 and 94.4 dB as a result of the seven different types of aircraft arriving at Heathrow before 6 a.m. each morning. Similarly, in Ashworth and Others v. the United Kingdom (no. 39561/98, 20 January 2004) the applicants lived close to an aerodrome. The noise levels at the home of one of the applicants had been measured at between 41 and 43 dB during mid-morning with background noises but without aviation activity. These levels were considered to be typical for a semi-rural location. However, the noise levels increased to between 64 and 67 dB, and occasionally to more than 75 dB, when there were fixed-wing and helicopter aircraft activities at the aerodrome.

Thus, as demonstrated by the above-mentioned cases, the Court reiterates that, in order to raise an issue under Article 8, the interference must directly affect the applicant's home, family or private life and the adverse effects of the environmental pollution must attain a certain minimum level of severity. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects. The general context of the environment should also be taken into account. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent in life in every modern city (see Fadeyeva, cited above, §§ 68–69).

Turning to the case before it, the Court accepts that the applicants were directly affected by the wind turbine as it emitted a constant, pulsating sound while functioning. However, the Court must also establish whether this nuisance reached the minimum level of severity set by its case-law.

The Court first notes that the noise tests, which were carried out in May 1998, showed that the noise levels in respect of the applicants’ property were calculated at 37.7 dB from the third wind turbine alone and at 39.4 dB from all three wind turbines together. The tests were carried out in accordance with the recommendations by the NBHBP, in the evening at a wind speed of eight metres per second, and in the presence of the applicants. Although the Court is aware that the applicants have criticised these tests, it notes that they have not submitted any alternative noise tests. Furthermore, they did not maintain their request for an in-depth noise investigation before the national authorities by making a formal demand following the evaluation meeting of 28 October 1998, or at a later point, despite being reminded of the opportunity to do so by the Board in its decision of 14 April 1999. As pointed out by the Government, such a demand would have resulted in a decision by the Environment Committee which could have been appealed against to the Board and subsequently to the environmental courts. In these circumstances, the Court accepts the results from the noise tests which were carried out as an approximate estimate of the noise levels emitted from the wind turbines.

The Court also takes into account the WHO's Guidelines for Community Noise and its Fact Sheet No. 258 (see above under ‘Noise levels and international standards’) from which it appears that noise can be a serious health hazard and that exposure for more than eight hours a day to sound in excess of 85 dB is potentially dangerous. Moreover, the guideline values for annoyance have been set at 50 or 55 dB, representing daytime levels below which a majority of the adult population will be protected from becoming moderately or seriously annoyed. In this respect, the Court notes that a ‘casual voice level’ in both men and women at a one-metre distance corresponds on average to 50 dB and that, where the noise is continuous, the equivalent sound level should not exceed 30 dB indoors, if negative effects are to be avoided. It recalls that the noise reduction from outside to inside with a window partly open has been estimated at about 15 dB.

Consequently, even having regard to the applicants’ submission that the noise level could be 3 to 5 dB higher than shown by the noise tests, that is roughly between 42 and 45 dB, this does not exceed the level recommended by the WHO, either outdoors or indoors, and it only slightly exceeds the recommended maximum level in Sweden. It is also significantly inferior to the noise levels measured in the cases cited above (Moreno Gómez, Hatton and Others, and Ashworth and Others). Therefore, in the Court's view, the nuisance caused by the wind turbine cannot be found to reach the level of constituting severe environmental pollution. It further considers that, even though the applicants’ property is used mainly for recreational purposes and is located in a semi-rural area, the noise levels are not such as to seriously affect the applicants or prevent them from enjoying their home and their private and family life. In reaching this conclusion, the Court also has regard to the fact that both the Board and the County Administrative Court, before deciding on the appeal, visited the applicants’ property to form their own opinion about the noise level and found that although the sound emitted from the wind turbine could be considered somewhat disturbing it was at a tolerable level.

As concerns the applicants’ allegation that the reflections of light from the wind turbine have strongly affected them, the Court finds that they have not substantiated this claim in any way and that, throughout the national proceedings as well as in the proceedings before the Court, it has been mentioned only cursorily as a secondary effect after the noise.

Lastly, the Court observes that the applicants have not furnished the Court, or the national authorities, with any medical certificates to substantiate that their health has been adversely affected by the noise or the light reflections.

Hence, having regard to the above and its case-law, the Court finds that the noise levels and light reflections in the present case were not so serious as to reach the high threshold established in cases dealing with environmental issues.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

The applicants further complained under Article 1 of Protocol No. 1 to the Convention that the noise and reflections of light from the wind turbine interfered with their peaceful enjoyment of their property and that the nuisance had decreased the value of their property. This provision reads:

The Government submitted that this complaint also should be declared inadmissible for non-exhaustion of domestic remedies since the applicants, if they considered that their property had decreased in value due to the noise and the light reflections from the wind turbine, could have instituted proceedings in an environmental court claiming financial compensation from, inter alia, the owners of the land where the wind turbine was located or from the owners of the wind turbine.

In any event, the Government argued that the complaint should be declared inadmissible ratione materiae because there had been no deprivation, control of use or interference with the applicants’ peaceful enjoyment of their possessions. However, if the Court were to consider that this provision was applicable to the present case, the Government contended that the complaint was manifestly ill-founded. Referring in extenso to their submissions under Article 8, the Government insisted that, having regard to the wide margin of appreciation accorded to the Contracting States in matters raising environmental issues, the alleged interference with the applicants’ property rights was in accordance with the law, was proportionate and had a legitimate aim. Thus, they were of the opinion that the national authorities and courts had struck a fair balance between the public interest and that of the applicants in the instant case.

The applicants maintained that their rights under Article 1 of Protocol No. 1 had been infringed by the nuisance caused by the wind turbine and that it had decreased the value of their property. They relied on the same grounds as they had for their complaint under Article 8 of the Convention.

Even assuming that the nuisance from the wind turbine can be considered to amount to an inference with the applicants’ peaceful enjoyment of their property, and that the complaint thus falls within the ambit of Article 1 of Protocol No. 1, the Court considers that it is manifestly ill-founded, for the reasons below.

Firstly, the Court observes that the original building permit for the third wind turbine, which was granted on 4 November 1997 by the Environment Committee, was repealed and replaced by a new building permit issued on 23 June 1998 by the Committee. This new building permit had been granted only after the applicants and other neighbours within a radius of 500 metres from the wind turbine had been invited to submit their opinions and also had done so. Moreover, the Swedish Civil Aviation Administration, the Swedish Armed Forces and the Board had been heard on the matter and the noise tests of 20 May 1998 had been submitted to the Environment Committee. The Court further notes that this decision was appealed against by the applicants first to the Board and then to the administrative courts. Both the Board and the County Administrative Court heard the appeal on its merits and they also visited the applicants’ property and held an oral hearing in the case before rejecting the appeals. The Court also recalls that Swedish legislation allows for building permits to be granted retrospectively and that, if a permit is not granted for a structure which had already been erected, the owners of that structure are obliged to dismantle it. Thus, it is clear to the Court that the building permit was granted in accordance with national law and hence the wind turbine was lawful.

Secondly, to the Court, there is no doubt that the operating of the wind turbine is in the general interest as it is an environmentally friendly source of energy which contributes to the sustainable development of natural resources. It observes that the wind turbine at issue in the present case is capable of producing enough energy to heat between 40 and 50 private households over a one-year period, which is beneficial both for the environment and for society.

Lastly, the Court must decide whether, when granting the retrospective building permit, a fair balance was struck between the competing interests of the individuals affected by the noise from the wind turbine and the community as a whole. In Hatton and Others (cited above, § 122) the Court stated that environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin. In the present case, this means that the Court must have regard to the positive environmental consequences of wind power for the community as a whole while also considering its negative impact on the applicants. In this respect, it reiterates that in cases raising environmental issues the State must be allowed a wide margin of appreciation (see, among others, Hatton and Others, cited above, § 100, and Taşkın and Others, cited above, § 116). However, due weight must be given to the individual's interests (Hatton and Others, cited above, § 99).

As the Court has already found when examining the complaint under Article 8 of the Convention, the nuisance caused to the applicants by the wind turbine cannot be considered so severe as to affect them seriously or impinge on their enjoyment of their property. In relation to the interests of the community as a whole, the Court reiterates that wind power is a renewable source of energy which is beneficial for both the environment and society. Moreover, the Court attaches weight to the fact that, in order to reduce the noise from the wind turbine, the Environment Committee imposed certain temporary restrictions on its functioning, which were subsequently extended. The Court is aware that the applicants considered these measures to be insufficient but observes that they could have requested, and still can, the imposition of further measures and that they were reminded of this possibility by the Board in its decision of 14 April 1999. Thus, a constant review of the measures already taken and the opportunity to request further measures are available to the applicants through the Environmental Code.

In these circumstances, the Court finds that the alleged interference was proportionate to the aims pursued and, consequently, this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

In so far as concerns the applicants’ claim that their property has decreased in value as a result of the noise and light reflections emitted from the wind turbine, the Court finds that they have failed to substantiate this allegation as they have not submitted any evidence that house prices in general or the value of their property in particular have been adversely affected by the wind turbine. In any event, the Court finds that the applicants did not exhaust domestic remedies available to them in this respect as they failed to institute any proceedings at the national level for financial compensation for the alleged loss of value of the property.

Thus, this part of the complaint is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.

The applicants also complained that they had been deprived of an effective domestic remedy for their Convention complaints, invoking Article 13 of the Convention.

The Court recalls that a complaint may only be made under Article 13 in connection with a substantive claim which is ‘arguable’ (see, for example, the above-mentioned Hatton and Others judgment, § 137, with further references, and Ashworth and Others, cited above). The Court has found that the applicants’ complaint under Article 8 is manifestly ill-founded and that their complaints under Article 1 of Protocol No. 1 are manifestly ill-founded and inadmissible for non-exhaustion of domestic remedies, respectively. It finds that those claims cannot be said to be ‘arguable’ within the meaning of the Convention case-law.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court by a majority

Declares the application inadmissible.

Santiago Quesada

Registrar

Josep Casadevall

President