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HEATHROW NIGHT FLIGHTS APPEAL IN COURT

11 Nov 2002

The Grand Chamber of the European Court of Human Rights (ECHR) will this week hear an appeal from the UK Government against the case brought by local residents concerning night flights at Heathrow airport [1]. The Government is appealing against the judgement that night flights violated local residents’ human rights. Friends of the Earth was given permission by the ECHR to intervene in the case.

British Airways, who ran a recent advertising campaign highlighting how “sleep deprivation causes memory loss, muddled thinking, visual impairment and memory loss,” [2] and who urged its First Class passengers “Don’t stand for sleepless nights” has intervened in support of the UK Government [3]. The airline claims there is a need to continue the present night flights regime.

The case against the UK Government resulted from the introduction of a new night flights scheme for Heathrow airport in 1993, which effectively increased the number of planes flying in and out of Heathrow at night. The Court accepted in its judgement that:

• the new scheme resulted in substantially increased night flights [3] with the result that local residents often tend to be awakened from about 4am and are then prevented from getting back to sleep as a result of the flights that follow;
• the residents suffered from constant tiredness, clinical depression, irritability, headaches and ear infections caused by wearing earplugs;
• for many of the residents aircraft noise had become the dominant feature of their existence destroying their sleep and, with it, much of their enjoyment of life;
• the noise caused by the night flights was substantially in excess of the World Health Organisation’s guidelines for avoiding sleep disturbance at night;
• Heathrow causes more community noise disturbance than any other airport in Europe and that, in spite of that fact, Heathrow is not one of the 50 European airports which operate night time curfews.

The Court also found that the Government failed to conduct the necessary balancing exercise between the applicants’ human rights and the economic contribution to the national economy of night flights [4]. In particular:

• the 1993 scheme was introduced without the Government having commissioned any research into the most obvious and severe consequence of night flights - the issue of sleep prevention;
• the Government had failed to carry out any research into the actual contribution of the night flights to the UK economy [5], and in particular, had carried out no research into the actual contribution of night flights to Heathrow.

Friends of the Earth was given permission to intervene in the case, on the basis of their expertise in this area, and have put forward submissions concerning the development of international and national law regarding the relationship between human rights and the environment [6].

Friends of the Earth’s aviation campaigner, Paul de Zylva said:
“British Airways clearly thinks that only its first class passengers are entitled to a good night’s sleep. It is a pity that the UK Government is more concerned with doing the air industry’s bidding rather than protecting people’s basic rights.”

Friends of the Earth’s legal adviser, Phil Michaels said:
“This case demonstrates the strong links between human rights and environmental protection. The UK Government has violated residents’ human rights by relying on unsubstantiated and generalised assertions that night flights are of economic importance to the UK. But they failed to look at the key issue of sleep prevention. Friends of the Earth hopes that the Grand Chamber will uphold the Court’s previous decision. The UK Government should concentrate on protecting its citizens from the damaging effects of night flights rather than avoiding its human rights obligations by reference to wholly unsubstantiated economic arguments.”

Notes

[1] The case is heard at 9am, Wednesday 13th November, European Court of Human Rights, Strasbourg.
[2] British Airways’ submission argues that “a reduction or ban on Night Flights would cause major damage to BA’s business out of all proportion to their actual number.” BA states that “BA takes the issue of noise seriously.” (Written Submission, 29th July 2002). The Applicants have noted that British Airways’ “hypocrisy is extraordinary” (Applicant’s Further Submissions to the Grand Chamber, 30th September 2002) and highlight recent advertisements by BA for its First Class service under the slogans “Don’t stand for sleepless nights” and “Sleep deprivation causes memory loss, muddled thinking, visual impairment and memory loss.” The repetition ‘memory loss’ is deliberate. The Applicants also note that BA quotes former NASA Scientist (recruited to share his sleep expertise with BA) as saying “our scientific research at NASA clearly demonstrates the importance of sleep in all aspects of our lives. We know that sleep is as vital to our survival as food and water.”
[3] As a result of the new scheme, aircraft movements over the night period increased by more than 50%.
[4] Art. 8 of the Convention allows the State to interfere with a person’s home and private life where “it is necessary in a democratic society in the interests of…the economic well-being of the country.”
[5] The Report relied upon by the UK Government (which was funded by the aviation industry) contained no research or conclusions in relation to night flights or the contribution to the UK economy. Nor did it focus on the particular position of Heathrow. It was the subject of detailed economic criticism in the report of aviation experts Berkeley Hanover, commissioned by the applicants. The claims of economic benefit must be measured against the undisputed fact that many of the world’s leading business centres (inc. Zurich, Berlin, Munich, Hamburg, Tokyo) enjoy full night-time passenger curfews of 7-8 hours.
[6] Friends of the Earth’s submissions were drafted by Professor Philippe Sands (Professor of Law and director of the Centre of International Courts and Tribunals at University College London; Global Professor of Law at NYU Law School; barrister at Matrix Chambers) together with Dr Adriana Fabra (University of Barcelona) and Alison Macdonald (Matrix Chambers). Copies of Friends of the Earth’s submissions (and those of the other parties) are available on request.

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