EHRM, 06-10-2009, nr. 5591/07

The applicants are the owners of residential properties situated near Stansted Airport, in the south-east of England. Stansted Airport is owned and operated by Stansted Airport Limited (‘BAA Stansted’), a private company which was at the relevant time a wholly-owned subsidiary of BAA Plc, a company then listed on the London stock exchange.

In December 2003, the Government published a White Paper, The Future of Air Transport (a White Paper outlines details of future policy on a particular subject and often leads to legislative proposals following responses to the paper). The White Paper set out a strategic framework for the development of airport capacity in the United Kingdom over the next 30 years and in that context, the Government expressed support for the construction of a new runway at Stansted Airport. The executive summary to the White Paper identified the Government's objectives as limiting and, where possible, reducing noise impact over time, as well as minimising other local environmental impacts. It noted:

The executive summary also invited airport operators to bring forward plans to increase capacity, including, where appropriate, measures to address blight.

The White Paper explained generalised blight as follows:

The statutory protection available was set out briefly in the White Paper:

The White Paper acknowledged that there would be no statutory remedy for generalised blight but accepted the need for some form of redress for property owners affected. It indicated that non-statutory schemes to deal with generalised blight were being developed by airport operators in respect of runways supported by the White Paper. Specifically, the White Paper stated that the Government expected such non-statutory schemes to minimise the impacts on local people. With regard to the Stansted expansion plans, the White Paper emphasised that:

The White Paper also addressed separately the issue of noise mitigation. Based on research, the Government used 57dBALeq16 hour (equivalent continuous noise level) as the level of daytime noise marking the approximate onset of significant community annoyance. The White Paper set out the Government's expectation that relevant airport operators would, with immediate effect, offer households subject to levels of noise at 69 dBALeq16 hour or more assistance with the costs of relocating. As regards households subject to noise levels of 63 dBALeq16 hour or more, the Government expected relevant airport operators to offer acoustic insulation. In respect of future airport growth, the Government indicated their expectation that relevant airport operators would offer to purchase those properties suffering from noise levels of 69 dBALeq16 hour or more and which saw an increase in noise levels of 3dBALeq or more; and to offer acoustic insulation to those with noise levels of 63 dBALeq16 hour or more and which saw an increase in noise levels of 3dBALeq16 hour or more.

The Government undertook to monitor and evaluate the impact and effectiveness of the policies set out in the White Paper.

BAA Stansted subsequently announced its intention to seek approval for the construction of a second runway at Stansted Airport. In February 2004, it outlined, in a consultation document, various proposals to address the problem of generalised blight.

On 30 April 2004, in response to a letter from 'Stop Stansted Expansion (an interest group opposed to the expansion of Stansted Airport), the then Parliamentary Under Secretary of State for Transport indicated that:

In September 2004, BAA Stansted published details of the scheme selected to assist home owners suffering from generalised blight: the Home Owner Support Scheme (‘HOSS’). Under the terms of the scheme, only properties falling within a contour line based on noise levels of 66 dBALeq16 hour (‘66 Leq’) and above fell within the ambit of the HOSS. There was no flexibility as regards the contour line and properties outside the contour line were ineligible for the scheme. BAA Stansted accepted that in defining this boundary, a line was drawn between those who would qualify and those who would not and that the line might appear arbitrary in some places. However, it emphasised that the selection of the line contour was based on detailed research, adding:

An applicant qualifying under the HOSS could either require BAA Stansted to enter into a legally binding and transferable option to purchase his property, allowing him to sell his property, together with the option to purchase, to a third party; or he could require BAA Stansted to buy his property once it had announced its intention to construct the runway (which was subject to the grant of planning permission). In addition, where an owner eligible for the HOSS was only able to sell his property for 15 per cent or more below the index-linked market price, an assisted relocation scheme would require BAA Stansted to purchase the property subject to terms and conditions. An early moving contribution was available for home owners who did not qualify for the assisted relocation scheme because they could sell their properties for within 15 per cent of the index-linked price.

In addition to the HOSS, BAA Stansted promulgated a Special Cases Scheme (‘SCS’) aimed at individuals who could demonstrate that a severe medical condition, such as a chronic or degenerative disease, made it necessary for them to move at the earliest opportunity but who were having difficulty selling their homes. One criterion of the SCS was that the individual had been unable to sell his home within 15 per cent of the market price. The 66 Leq contour line did not apply to the SCS.

The applicants' properties lie outside the 66 Leq contour line. Accordingly, they are not eligible to benefit from the HOSS. Nor are they eligible under the SCS. They nonetheless consider that their properties have been affected by generalised blight. They rely on statistics from the Land Registry Office which show that while house prices in the county of Essex increased by 25.5 per cent on average between April-June 2002 and the final quarter of 2003, house prices in Uttlesford, the district within Essex in which Stansted Airport and their properties are situated, only increased by an average of 12.7 per cent.

By letter dated 5 November 2004, the then Parliamentary Under Secretary of State for Transport, responding to a letter from ‘Stop Stansted Expansion’, stated that:

Planning permission for the new runway has not yet been granted.

The first applicant, together with Takeley Parish Council (‘Takeley’), sought leave to apply for judicial review of the HOSS complaining that it compensated some home owners affected by generalised blight but not all; and that it was applied inflexibly. The defendants were BAA Stansted and BAA plc. In their summary grounds of defence the defendants sought GBP 23,585 by way of the costs of defending the application for leave to apply for judicial review. Permission to bring judicial review proceedings was refused on the papers on 4 March 2005, with the judge commenting that the level of costs claimed by the defendants appeared disproportionate and that detailed assessment was therefore likely to be required.

The claim for permission to apply for judicial review was renewed at an oral hearing, with a substantially amended statement of facts and grounds which sought to introduce the Secretary of State for Transport as a third defendant. The argument developed at the oral hearing before the High Court was that the Secretary of State had acted unlawfully in positively supporting and continuing to support and endorse the HOSS scheme in circumstances in which the requirements of the policy set out in the White Paper were not met and/or in continuing to express policy support for the development of Stansted in circumstances where insufficient provision had been made to address generalised blight. Accordingly, it was argued, the Secretary of State had failed to comply with his duties under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1.

Takeley and Mr Allen also made a separate application for a protective costs order (‘PCO’). Although Mr Allen was indemnified by Takeley in respect of costs, Takeley itself had limited financial resources. Accordingly, the terms of the PCO sought was that each party pay its own costs in relation to the judicial review proceedings, on the grounds that the case was one of general interest and that the prohibitive level of costs which could potentially be awarded against the claimants if unsuccessful would inevitably oblige them to discontinue the application for judicial review.

By order dated 13 July 2005, Sir Andrew Collins declined to make an advance order on costs on the basis that the issue of costs should be dealt with on the relevant application for permission. He observed that the condition in R (on the application of Corner House Research) v Secretary of State for Trade and Industry (see relevant domestic law and practice below) that the claimant should have no private interest in the case in order for a PCO to be awarded ‘may be too restrictive but there are substantial arguments against a PCO, although some sort of capping may be appropriate’.

On 14 December 2005, Mr Justice Lloyd Jones refused the renewed application for leave to apply for judicial review. He noted at the outset (at paragraph 24) that:

In respect of the argument that the balance struck between competing rights by the White Paper was not reflected in the HOSS, the judge disagreed. He considered that the White Paper did not contemplate a voluntary scheme which would relieve all cases of generalised blight and that, accordingly, the HOSS scheme was not incompatible with the policy set out in the White Paper.

As regards the argument that in endorsing the scheme, the Secretary of State had infringed Convention rights, Lloyd Jones J considered in turn the various articles relied upon. In respect of Article 8, he concluded that the case involved the possible diminution in value of property and that, as a consequence, Article 8 was not engaged. In any case, the balance struck by the scheme did not raise an arguable claim under Article 8. As regards Article 1 of Protocol No. 1, he noted that it was common ground among the parties that the article was engaged and he considered that the case involved a control of the use of the property, rather than deprivation of ownership. He referred to the approach of the Court of Appeal in R (Trailer and Marina (Leven) Ltd) v Secretary of the State for the Environment, Food and Rural Affairs and another[2005] 1 WLR 1267 in which Neuberger LJ, citing Allan Jacobsson v. Sweden (no. 1), 25 October 1989, § 55, Series A no. 163, explained that in such cases there had to be a reasonable relationship of proportionality between the means employed and the aim sought to be realised; and that in striking the fair balance between the general interest of the community and the requirements of the protection of the individual's fundamental rights, the authorities enjoyed a wide margin of appreciation. Lloyd Jones J concluded (at paragraph 30) that:

As for the alternative argument that it would be disproportionate to base the scheme on the noise contour without incorporating some element of flexibility, Lloyd Jones J held (at paragraph 31):

Lloyd Jones J noted that the documents setting out the HOSS explained clearly why it was considered desirable to have a contour line and why the 66 Leq noise boundary had been adopted. The deliberate exclusion of discretion did not make drawing a line disproportionate. He concluded that there was an objective justification for the approach adopted, which was the need for legal certainty and a workable rule.

Finally, as regards Article 14, Lloyd Jones J held (at paragraph 34):

In the circumstances, Lloyd Jones J found that the issue of the protective costs order did not arise. However, having heard argument from the parties, he limited the extent of the costs order made in respect of the proceedings. No costs order was made against Mr Allen. Takeley was ordered to pay the first and second defendants' assessed costs of acknowledging service and resisting the PCO, the latter costs to be limited to GBP 1,000, and the third defendant's costs of lodging written submissions, limited to GBP 1,000. No costs were awarded in respect of the oral hearing.

Mr Allen and Takeley subsequently sought permission to appeal to the Court of Appeal against the refusal of leave on the ground that, inter alia, the judge had erred in law in concluding that there was no arguable case that the Secretary of State had acted, and continued to act, in breach of his obligations under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1.

By order dated 21 July 2006, Lord Justice Waller adjourned the application to be heard by the full court, with the appeal to follow if permission was granted. He commented that:

Following a request for clarification from solicitors acting for Takeley and Mr Allen, Waller LJ confirmed on 12 October 2006 that he would not make a protective costs order.

Takeley and Mr Allen subsequently sought the advice of leading and junior counsel. Counsel advised that although the case was arguable, the prospects of success on appeal were low and the prospects of success in the substantive judicial review application were even lower. In this respect, Waller LJ's comments in his 21 July order that he had doubts about the prospects of success were significant. In view of Takeley's limited financial resources and the likely considerable level of costs which would be awarded against them if their appeal was unsuccessful, counsel advised the withdrawal of the appeal.

The appeal was subsequently dismissed by consent.

Under statutory planning law, residential occupiers directly affected by airport development plans have access to statutory blight provisions either when planning permission has been granted for airport development or when the local development plan has been revised to reflect the development proposals.

Under Part I of the Land Compensation Act 1973, those affected by airport development can claim compensation for the loss in the value of their property directly attributable to the operation of the new development. However, eligibility for compensation arises only after 12 months have passed since the new runway has entered in operation.

The normal rule in civil proceedings in England and Wales, including judicial review proceedings, is that the unsuccessful party pays the reasonable costs of the successful party.

The court may, in certain circumstances, make a protective costs order. The relevant principles governing the making of PCOs in public law cases raising issues of general public importance were set out in R (on the application of Corner House Research) v Secretary of State for Trade and Industry[2005] 1 WLR 260. In that case, the Court of Appeal held (at paragraph 74):

The Court observes that the applicants' complaint comprises two elements: (i) the endorsement by the Government of the new runway; and (ii) the failure of the Government to put in place measures to protect individuals, including the applicants, from generalised blight. The applicants argued that these constituted a direct interference by the State with their Convention rights and also that the State's responsibility was engaged as a result of a failure to act to secure the effective protection of their rights under Article 1 of Protocol No. 1.

Before the domestic courts, it was common ground between the parties that Article 1 of Protocol No. 1 was engaged. It was not contested by the Secretary of State in the domestic proceedings that the applicants' properties were situated in close proximity to the proposed new runway, such that the values of the properties might be negatively affected by the development plans. However, the prospect of future development is only one of a number of factors which may impact on property prices. No detailed statistics have been provided and the statistics provided by the applicants showing movements in property prices over a period in 2002–2003 are therefore of limited value (see paragraph 16 above). The applicants do not allege that they have attempted to sell their properties and have experienced difficulties or financial disadvantage in doing so. Any detriment to the properties arising from the plans for a second runway and the limited scope of the HOSS is therefore merely hypothetical. However, the fact that the applicants have not tried to sell their properties is of itself insufficient to allow the Court to conclude that there has been no interference in the present case, given the general acceptance by the domestic authorities of the phenomenon of generalised blight and its uncertain effects and indeterminate duration (see in this connection Sporrong and Lönnroth v. Sweden, 23 September 1982, Series A no. 52 where the Court examined the effect of planning blight on the applicants' properties and did not consider it fatal to the Sporrong Estate's claim that it had not attempted to sell the property concerned, nor had it applied for and been refused exemptions from the prohibition on construction affecting the property).

Accordingly, the Court considers that the applicants' right to peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 was affected by plans to construct a second runway at Stansted Airport. The question arises as to whether the development plans should be analysed solely in terms of a direct interference by the respondent State through its endorsement of the second runway at Stansted or also in terms of a potential violation of the State's positive duties arising under Article 1 of Protocol No. 1.

It is clear that Article 1 of Protocol No. 1 may entail positive obligations which may require the State to take the measures necessary to protect the right of property (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002-VII; and Broniowski v. Poland [GC], no. 31443/96, § 143, ECHR 2004-V). The Court has previously considered that the Government's responsibility for acts was engaged indirectly where applicants were deprived of their possessions as a result of a law permitting acquisition of title on the basis of adverse possession (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 57, ECHR 2007-…) and resulting from a land reform law which allowed tenants to acquire their properties (see James and Others v. the United Kingdom, 21 February 1986, § 36, Series A no. 98).

Although the cases cited above in which the Court considered that positive obligations arose involved individuals taking action under provisions of legislation already enacted by the State, the Court sees no reason to adopt a different approach where the alleged positive obligation arises from the State's failure to put in place legislation protecting individuals' property rights. In this regard, the Court observes that in the context of complaints under Article 8 of the Convention, it has consistently held that there may arise, in certain cases, a positive obligation on the State to take reasonable and appropriate measures to secure applicants' rights under that Article which entails, above all, an obligation to put in place a legislative and administrative framework for the effective protection of applicants' rights (see, mutatis mutandis, Tătar, cited above, § 88).

In any event, similar principles apply whether a case is analysed in terms of a State's positive duty or in terms of an interference by a public authority with the applicants' rights (see, mutatis mutandis, Hatton and Others, cited above, § 119; and Tătar, cited above, § 87). The facts of the present case may be examined in terms of a hindrance to the effective exercise of the right protected by Article 1 of Protocol No. 1 or in terms of a failure to secure the implementation of that right. Having regard to the particular circumstances of the present case, the Court considers it unnecessary to categorise strictly its examination of the case as being under the head of the State's positive obligations or under the head of the State's negative duty to refrain from an unjustified interference with the peaceful enjoyment of property, or both (see, inter alia, Broniowski, cited above, § 146). The Court will determine whether the overall conduct of the United Kingdom authorities was justifiable in the light of the principles set out below.

The measure about which the applicants complain is the proposed development of Stansted Airport, which they contend will have an impact on the values of their properties. The Court will examine the case in light of the general rule in the first sentence of the first paragraph which lays down the right to peaceful enjoyment of possessions (see Öneryıldız v. Turkey [GC], no. 48939/99, § 133, ECHR 2004-XII; and Sporrong and Lönnroth, cited above, § 65).

In order to be compatible with Article 1 of Protocol No. 1, an interference with the right to the peaceful enjoyment of possessions must strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000-I; Pye, cited above, § 53; and Sporrong and Lönnroth, cited above, §69). The balance struck between competing interests in the present case is examined below.

The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of Article 14 (Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23). Moreover, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; and Burden v. the United Kingdom, cited above, § 60). Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (Burden v. the United Kingdom, cited above, § 60). The scope of this margin will vary according to the circumstances, the subject-matter and the background. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is ‘manifestly without reasonable foundation’ (Stec and Others v. the United Kingdom, [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006).

The High Court considered that Article 14 was not engaged as, in its view, the scheme did not discriminate between individuals and groups on the basis of personal characteristics.

The Court recalls that it has previously found categories of property owners (see James and Others, cited above, § 74; and Jahn, cited above, 121) to constitute ‘other status’ for the purposes of Article 14. Accordingly, the Court is content to proceed on the basis that Article 14 is engaged in the present case.

As noted above (paragraph 71), in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. It is thus clear that discrimination under Article 14 involves a failure to treat like cases alike and that there can be no discrimination where cases are relevantly different.

The applicants contend that they are in a relevantly similar position to those resident within the 66 Leq contour line. However, the Court observes that the contour line was intended to include within it those most seriously disadvantaged, in terms of their ability to sell their properties, by the prospect of the second runway at Stansted Airport. Those most seriously disadvantaged are identified by considering which property owners would suffer most from increased noise pollution were the second runway to come into operation. A noise contour line appears to be a reasonable means of identifying the persons concerned. The Court is therefore hesitant to find an analogy between the position of the applicants, who live outside the line selected, and those who live within it.

In any event, even if the applicants could be said to be in an analogous position to residents inside the contour line, the Court considers that the difference in treatment has objective and reasonable justification. The applicants' complaint must be examined in light of the Court's finding under Article 1 of Protocol No. 1 that the scheme adopted by BAA Stansted and the absence of legislation establishing a mandatory scheme covering all individuals whose property values suffered from generalised blight struck a fair balance between the competing rights and interests of the parties involved. The selection of a contour line was a fair and reasonable way of defining eligibility for the scheme and, as the Court has reiterated above, the fact that the rule adopted was absolute did not necessarily render it disproportionate. The Court concludes that in view of the legitimate objectives being pursued in the general interest and having regard to the respondent State's margin of appreciation, the policy of different treatment cannot be considered as unreasonable or as imposing a disproportionate burden on the applicants.

It follows that the complaint under Article 14, taken together with Article 1 of Protocol No. 1 is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.