Transcript HUMAN RIGHTS AND ENVIRONMENTAL & PLANNING LAW

HUMAN RIGHTS AND
ENVIRONMENTAL
A BRIEF OVERVIEW
Human Rights are part of EU law
• Nold 4/73 [1974] ECR 491, §13
• When protecting fundamental rights, "the Court
…. cannot therefore uphold measures which are
incompatible with fundamental rights recognised
and protected by the Constitutions of those
States."
• The Court can also draw on international human
rights treaties to which Member States have
collaborated or are signatories.
European Convention on
Human Rights
• According to Article 6(2) of the EU
Treaty,11 ‘[t]he Union shall respect
fundamental rights as guaranteed by the
[ECHR]’.
• EU is a party to the ECHR
Lisbon 12/1/2009
• The Charter of Fundamental Rights of
the European Union applies to member
states when they are implementing EU law
• The Fundamental Rights' Charter has the
same legal value as the European Union
Treaties.
• Opt outs for UK , Poland and Czech
Republic
Some relevant articles in Charter
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Article 37
Environmental protection
A high level of environmental protection and the improvement of the quality of the environment
must be integrated into the policies of the Union and ensured in accordance with the principle of
sustainable development. Article 2
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
Article 3
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
2. In the fields of medicine and biology, the following must be respected in particular:
- the free and informed consent of the person concerned, according to the procedures laid down
by law,
- the prohibition of eugenic practices, in particular those aiming at the selection of persons,
- the prohibition on making the human body and its parts as such a source of financial gain,
- the prohibition of the reproductive cloning of human beings.
Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Background to the ECtHR
• The ECtHR is an international treaty
guaranteeing fundamental human rights
and freedoms.
• 47 States are party to it
• It is part of EU law since Lisbon
• It contains a number of provisions
guaranteeing various human rights.
Some States
• Have actually incorporated the Charter
into their domestic laws as well so that
their domestic laws must respect the rights
in it. For example, Ireland and UK
Three courts
• In the EU, three courts can deal with human
rights
• The European Court of Human Rights in
Strasbourg
• The ECJ and the General Court in Luxembourg
• But their competencies are different although
they may overlap.
• Also standing to sue is different in the different
courts. Individuals rarely sue in ECJ. They can
sue in Ect HR if they have exhausted local
remedies
Effect of decisions
• Decisions made by the European Court of
Human Rights are not legally binding on
national courts, although they will be taken
into account by these courts. Decisions of
the Court of Justice are legally binding on
all national courts
Developments in the
Planning/Environmental Context
• The following Convention rights are the most relevant in
the context of environmental and land use law:
– Substantive guarantees:
• Article 1 of the First Protocol – property rights
• Article 2 – right to life
• Article 8 – right to respect for private and family life
– Procedural guarantees:
• Article 6 – fair procedures
• Article 14 – prohibition on discrimination
• So far Article 8 and Article 6 seem to be of the greatest
significance in this context.
Article 1, First Protocol provides:
• “Every natural and legal person is entitled to the
peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in
the public interest and subject to the conditions
provided for by law and by the general principles
of international law.
• The preceding provisions shall not however, in
any way impair the right of a State to enforce
such laws as it deems necessary to control the
use of property in accordance with the general
interest or to secure the payment of taxes or
other contributions or penalties.”
European Ct of Human Rights
• Art.1, First Protocol applies both to the use
of land and the ownership of land.
• State enjoys a wide margin of discretion to
interfere
• and measures interfering with them in the
interests of social justice will be
considered as being in the public interest.
• Sporrong and Lonnroth v Sweden
• Disproportionate interference violates Art1
Immobiliare Saffi v Italy,
• Failure to enforce a landlord’s rights to
recover his apartment over 11 years.
• Held - the lengthy delay imposed an
excessive burden on the applicant. The
court also held that enforcement of a
judgment is part of the “trial” and cannot
be unduly delayed, otherwise there could
be a violation of Art.6(1) (fair procedures).
13 years to get possession!
Revocation of an environmental
authorisation
• In Re Mineral Resources (Environmental Agency
v Stout) the English High Court was prepared to
regard a waste management licence as
property. The suspension or revocation of such
licences could therefore be regarded as
affecting property rights and the question might
arise whether or not this was a proportionate
regulatory action and whether compensation
should be payable for interfering with such a
property right in appropriate cases.
Ethical objections and CPO
• In Chassagnou v France a French law requiring
landowners with ethical objections to hunting to
allow hunts over their lands was condemned as
disproportionate.
• Papachelas v Greece the court held that
compensation payable when land is
compulsorily acquired for roads must bear a
reasonable relationship to its market value.
Article 2 (the right to life)
• Article 2 provides:
• “Everyone’s right to life shall be protected by
law. No one shall be deprived of his life
intentionally save in the execution of a sentence
of a court following his conviction of a crime for
which this penalty is provided by law.”
• 1985 Sixth Protocol abolishes death penalty
Right to life
• A public authority which has information
indicating dangers to the life or health of
the population in a locality, might find itself
liable for breach of Art.2 if it does not act
on such information and inform persons
who may suffer damage to their health
• Eg: Water Supplies Act duty to inform
public
Guerra duty to provide information
• In Guerra, a failure by a local authority to inform the local population
of potential risks from a chemical plant was held to be a breach of
Art.8 (right to respect for private and family life) but a minority in
Guerra further held that Art.2 had also been violated. Walsh J.
considered that Art.2 guaranteed a right to bodily integrity which had
been infringed because the local population had suffered some
cancer-related deaths connected with emissions from the factory.
Jambreck J. observed that if a government withholds information
about circumstances which, foreseeably and on substantial grounds,
presented a real risk of danger to health and physical integrity, this
could be a violation of Art.2. Note that the duty in Guerra arose even
where the complainants were unable to prove that actual damage
had been caused to them. The toxic history of the chemical plant
combined with the Government’s tardy provision of what the Court
considered to be information of grave importance was sufficient to
show that the Government was in breach of its duty to the
applicants. Minority opinion said right to bodily integrity also
infringed (Art 2.)
Onerylidiz v Turkey
• Right to life infringed by appalling landfill.
• Relatives of victims of Art.2 breaches have
a right to adequate and timely
compensation
Illegal buildings
• Antonetto v Italy the ECtHR held that the
plaintiff’s right to the peaceful enjoyment of her
possessions had been infringed when Italian
authorities persistently refused to enforce a court
order to demolish an illegally-built building which
obstructed her right to light and her view and
devalued her property. The court found that her
rights under Arts 6 and 1 of Protocol 1 had been
infringed. Her property rights were violated
because the lack of effective enforcement meant
her property had suffered a loss of amenity and
a decrease in value.
Article 8 – doctrine of
environmental human rights
• Article 8(1) – ‘Everyone has the right to respect for his
private and family life, his home and his
correspondence.’
• Article 8(2) – ‘There shall be no interference by a public
authority with the exercise of this right except such as in
accordance with the law and as is necessary in the
interests 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’.
• Case law under Article 8 indicates that the State is under
a double barrelled duty to provide:
– Environmental Protection
– Environmental Information
Powell and Raynor v UK (ECtHR 1990)
• Applicants argued that noise pollution from Heathrow airport violated
their rights to protection for family and private life under Art.8.
• Held although Art.8(1) had been breached, the interference was not
disproportionate and could be justified under A.8(2) as it was
essential for the UK’s economy to have a world class airport close to
London’s centre.
• In striking a balance between A.8(1) and A.8(2) states allowed a
wide margin of appreciation.
• The fact that the UK authorities had taken all reasonable measures
to minimise the disturbance and had complied with international
standards was a factor that weighed strongly in their favour .
• Applicants lost but the UK had to really defend how it had planned
Heathrow
Lopes Ostra v Spain (ECtHR, 1995)
• Leading case – first where applicants won.
• Applicants home was located a mere 12m from a waste
treatment facility.
• Family forced to move from home as a result of smells
and nuisance.
• ECtHR held that Art.8 was applicable.
• Accepted that States have a wide margin of appreciation
within which they can operate but nonetheless found that
the balance between the competing interests of the
individual and the community had not been properly
struck.
• Here national law had not been complied with but the
Court held that even if it had A.8 would still have been
breached.
So what does all of this mean?
• Hart summarises the position as follows – ‘a duty might
therefore apply to an environmental authority, including a
planning authority, which identifies some significant
hazard whilst exercising its responsibilities and does not
do enough either to minimise environmental damage or
to make those likely to be affected aware of the
dangers.’
• This double-barrelled duty supplements previous existing
remedies under statute, common law and the
constitution.
• New avenue of challenge in some EU domestic courts .
• Particularly relevant with regards to the location of waste
treatment facilities, incinerators, contaminated
land/water,radio, TV and mobile phone masts.
Article 6
• ‘In the determination of his civil
rights…everyone is entitled to a fair and
public hearing within a reasonable time by
an independent and impartial tribunal
established by law.’
Step 1: ‘Civil rights’
• Within the planning and environmental context, whose rights may be
classified as ‘civil rights’?
• Developer – are his civil rights at stake?
Benthem v The Netherlands – Yes
• Third party objectors – are their civil rights at stake?
Zander v Sweden – Yes
However, the connection between the third party and the
development must not be too tenuous – see Tauira & Others v
France
Step 2: ‘a fair hearing before an
independent and impartial tribunal’
• Given that the environmental authorisation
systems generally involves the determination of
a civil right, the procedures and structures in
place must comply with the requirements of
fairness, impartiality and independence laid
down in Article 6.
• The English planning system has come under
much scrutiny in this regard.
Art 13 Effective remedies
:
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.
A unique level of oversight...or interference?
Effective remedy claims
E.g. effective remedy for length-ofproceedings claims
• Abramiuc v. Romania, 37411/02 [2009] ECHR
116: absence of effective remedies for length-ofproceedings claims;
• Martins Castro and Alves Correia de Castro v.
Portugal No. 33729/06 [2008] ECHR 109:
ineffectiveness of length-of-proceedings remedy
owing to lack of compensation for non-pecuniary
damage.
Budayeva v. Russia
• Dam < mudslides
• Assistance, but no inquiry or
enforcement...
The authorities failed
to discharge the positive obligation to establish a
legislative and administrative framework to deter threats
to the right to life required as required by the substantive
aspect of art 2 (right to life)
European Social Charter
• Marangopoulos Foundation for Human
Rights (MFHR) v Greece a Greek
environmental NGO complained to the
Committee that a Greek lignite mining
company of which the State was the
majority shareholder had violated, inter
alia, the right to protection of health in
Article 11 of the Charter
Right to healthy environment
the right to health included the right to a healthy
environment
Article11 had been violated by Greece which had
not enforced national or international
environmental protection legislation effectively,
had not monitored the pollution from the mine
and had not ensured that its environmental
inspectorate was properly equipped to carry out
its task.