European Court considers environmental safety risks and the right to respect for family life and the home

Hardy and Maile v United Kingdom [2012] ECHR 261 (14 February 2012)

Summary

The applicants challenged planning permits granted for the operation of liquefied natural gas (“LNG”) terminals in the UK, alleging that the marine risk of a possible collision in the harbour leading to the escape of LNG had not been properly assessed. The European Court of Human Rights found that there was a “coherent and comprehensive legislative and regulatory framework governing the activities in question” and that “extensive reports and studies” had been carried out in relation to the terminals. This was sufficient to fulfil the UK’s obligation to secure the applicants’ right to respect for their private lives and homes under Article 8 of the European Convention of Human Rights.

Facts

The applicants were members of an informal group of local residents opposed to two LNG terminals at Milford Haven harbour. Prior to approval, various assessments were carried out by the relevant authorities in relation to the environmental impact and safety risks presented by operation of these LNG terminals. The applicants alleged that there were inadequacies in the assessment of the associated marine risks, in particular the danger of a major release of LNG from a delivery ship.

Both the High Court and Court of Appeal refused permission to appeal the planning permits, on the basis of (i) the applicants’ undue delay in challenging the decision, and (ii) the prejudice that would be caused to the operators. The applicants subsequently brought a complaint under Articles 2 and 8 of the European Convention. They further complained about the lack of information disclosed regarding the risks associated with the LNG terminals in Milford Haven.

Decision

Admissibility of claim under Article 8

The Court decided to examine the appeal under Article 8 of the European Convention alone. This article enshrines the right to respect for private and family life and home, and freedom from interference in the exercise of this right by public authorities, except in accordance with Article 8(2) exceptions.

Factually, there was no actual pollution occurring, and the risk of explosion due to escaped gas was found to be very slight. Nonetheless, the Court found that the potential risks posed by the LNG terminals due to the possibility of a collision, and the ensuing consequences, were “such as to establish a sufficiently close link with the applicants’ private lives and homes for the purposes of Article 8”.

Applicants’ complaint regarding the safety of the LNG terminals

The Court reiterated that in cases involving decisions affecting environmental issues, it can:

• assess the substantive merits of the national authorities’ decision to ensure that the decision is compatible with Article 8; and
• scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.

The Court stated that national authorities are in principle better placed to assess the requirements relating to transport and processing in the local context, and the needs of the local community. The Court affirmed that “in cases raising environmental issues the State must be allowed a wide margin of appreciation”.

In the present case, the Court found that there was a comprehensive legislative and regulatory framework governing the relevant activities, and that extensive reports and studies had been carried out to the satisfaction of the planning and hazardous substances authorities and domestic courts. The Court observed that “comprehensive and measurable data” was not required on every issue. It did not appear to the Court “that there has been any manifest error of appreciation by the national authorities in striking a fair balance between the competing interests in the case”. The Court concluded that the UK had fulfilled its obligations to secure the applicants’ right to respect for their private lives and homes.

Applicants’ complaint regarding disclosure of information

The Court affirmed the principle from previous cases that where a Government engages in hazardous activities which may have hidden adverse health consequences, Article 8 requires that “an effective and accessible procedure must be established which enables [potentially affected] persons to seek all relevant and appropriate information”, which would enable the public to assess the danger to which they are exposed.

However, the Court dismissed the applicants’ complaints in the present case, as the authorities were held to have provided to the applicants the information required by Article 8, and an appropriate procedure under the Environmental Information Regulations was in place.

Relevance to the Victorian Charter

This decision may be of relevance for interpreting section 13 of the Victorian Charter, which provides that a person has the right not to have his or her family or home unlawfully or arbitrarily interfered with. Factually, the nature of the legislative and regulatory framework in place to promote safety and to limit the safety risks – which the European Court here deemed sufficient – may be relevant to a Victorian Court’s consideration of what amounts to ‘arbitrary’ interference in the context of Victorian environment and planning laws.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/261.html

Louise Brown is a Law Graduate with the King & Wood Mallesons Human Rights Law Group.