Missed opportunities: the right of light and human rights

How convention rights can assist in right to light cases where conventional argument will not be successful.

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It is surprising that, during the 16 years that the Human Rights Act 1998 “HRA98” has been in force, that there has been no case in which the domestic courts have ruled upon the impact of convention rights in a case involving a right to light.  The explanation for this may be found in the perception that convention rights are enforceable against public bodies, an understandable view in light of s6 of the HRA98, while litigation in these cases is between commercial organisations or private individuals.  However, the perception that convention rights cannot apply in litigation between private individuals is not entirely correct.  This article seeks to explore the basis upon which convention rights may assist in those cases concerning a right to light where conventional argument may not provide a successful outcome.

Interpretation

The first way in which the HRA98 may assist is with regard to interpretation.  Section 3 of the Act requires that “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”  In Ghaidan v Godin-Mendoza[1] Lord Nicolls described the “unusual and far-reaching character” of the obligation, which may require the court to depart from the “unambiguous meaning the legislation would otherwise bear”[2].   This obligation may be such that it was necessary to depart from the legislative intention of Parliament.  In considering the will of Parliament he considered that it would be a “semantic lottery” if the operation of s3 should depend critically on the form of words of the draftsman.  Crucially, the mere fact that the language was inconsistent with a Convention meaning does not make a Convention compliant interpretation impossible; rather section 3 enabled language to be read “restrictively or expansively” and it was “also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant

Lord Steyn considered that the use of s3 was the principal “remedial measure” under the HRA98 and a declaration of incompatibility the “last resort”[3].  It was the “linch-pin” of the legislation such that the Lord Chancellor observed that in 99% of cases there would be no need for judicial declarations of incompatibility and the Home Secretary agreed that in “almost all” cases there could be a compatible reading[4].  Lord Steyn considered that there were two factors which contributed to a misunderstanding of the remedial scheme of the 1998 Acts:

40 My impression is that two factors are contributing to a misunderstanding of the remedial scheme of the 1998 Act. First, there is the constant refrain that a judicial reading down, or reading in, under section 3 would flout the will of Parliament as expressed in the statute under examination. This question cannot sensibly be considered without giving full weight to the countervailing will of Parliament as expressed in the 1998 Act.

41 The second factor may be an excessive concentration on linguistic features of the particular statute. Nowhere in our legal system is a literalistic approach more inappropriate than when considering whether a breach of a Convention right may be removed by interpretation under section 3. Section 3 requires a broad approach concentrating, amongst other things, in a purposive way on the importance of the fundamental right involved.

42 In enacting the 1998 Act Parliament legislated "to bring rights home" from the European Court of Human Rights to be determined in the courts of the United Kingdom. That is what the White Paper said: see Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), para 2.7. That is what Parliament was told. The mischief to be addressed was the fact that Convention rights as set out in the ECHR, which Britain ratified in 1951, could not be vindicated in our courts. Critical to this purpose was the enactment of effective remedial provisions.”

Lord Steyn noted that if Parliament disagreed with the interpretation adopted by the courts it could override it by amending the legislation and expressly reinstating the incompatibility.  Section 3 applied even if there was no ambiguity in the sense of it being capable of bearing two possible meanings, as “possible” in s3(1) Human Rights Act 1998 had a “stronger and more radical obligation” than one of purposive construction.  Parliament had expressly rejected a model which required a reasonable interpretation (as in New Zealand) paragraph.  There was a “strong rebuttable presumption” in favour of a Convention compliant interpretation[5].

Lord Rodger held that section 3(1) was “crucial to the working of the 1998 Act” and that it was not the “intention of Parliament to place those asserting their rights at the mercy of the linguistic choices of the individual who happened to draft the provision in question.” It was the substance of the measure which was significant, “Parliament was not out to devise an entertaining parlour game for lawyers…”[6]  

Accordingly, all relevant primary and secondary legislation including the Prescription Act 1832, the Town and Country Planning Act 1990 “the 1990 Act” and the Rights of Light Act 1959 “the 1959 Act” must be read and given effect in a way which is compatible with relevant Convention rights.  The impact of this interpretation on the way in which a right to light may be established could be considerable.  For example, Convention rights are not dependent upon establishing the 20 year prescription period in s3 of the Prescription Act 1832 and there may well be arguments over whether registration of a notice under the 1959 Act can prevent access and use of light without interruption.

Positive obligations and Article 8

It was established at a very early stage of the development of the Strasbourg jurisprudence that, in addition to the primary negative obligation under Article 8, which requires the state not to interfere with the rights guaranteed under the article, there may also be positive obligations which can arise[7].  So, in Powell and Rayner v. the United Kingdom[8] the Court declared Article 8 applicable because: “In each case, albeit to greatly differing degrees, the quality of the applicant’s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. López Ostra v. Spain concerned noise pollution from a waste-treatment plant.  The Court held that “severe environmental pollution 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, without, however, seriously endangering their health”.  In Guerra and Others v. Italy[9] , the Court observed: “The direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable”.

There was a violation of Article 8 in Surugiu v. Romania[10] in which acts of harassment by third parties who entered the applicant’s yard and dumped several cartloads of manure in front of the door and under the windows of the house, were held to be a violation of the applicant’s right to respect for his home. 

Noise nuisance constituted a violation of Article 8 in Moreno Gomez v Spain[11], in respect of premises which had been licenced by the local council; the breach by the state was its failure to  stop the noisy actions of a third party.

In Kolyadenko v Russia[12] the state was liable for flooding from a reservoir which was considered to be a breach of the positive obligations on the state. 

Deés v Hungary[13] was a case in which the applicant’s house was damaged by increased noise and pollution rendering his house uninhabitable as a result of trucks and other vehicles using the road outside his house to avoid a toll on the local motorway.  The Court held that, while acknowledging the complexity of the state’s task in balancing the interests of various groups, the measures taken by the state were inadequate and in violation of Article 8, thus creating a serious nuisance which was a disproportionate individual burden.

This line of authorities suggests that it may well be possible to rely upon Article 8 in cases concerning the right to light, even if the interference is not by a public body.  Indeed, there is also a question whether the court, in considering whether to make an injunction, is itself interfering with Convention rights.  It may well be that the guidance of the Supreme Court in McDonald v McDonald, on the role of the court in possession proceedings, may provide assistance about the merits of this argument.  That case was heard in March 2016 and judgment is pending. 

Reliance upon Article 8 would not be limited to those cases in which the premises are a home, as the protection with regard to a private life includes business and professional relationships: Niemitx v Germany[14]. Therefore Article 8 may be used in such a case.   However, it is only an individual who has rights under Article 8, not a body corporate, and so it is helpful to consider the position under Article 1 Protocol 1 “A1P1” which extends to every “natural or legal person.”

A1P1

The Strasbourg Court has considered the right to light in the context of A1P1.  In Antonetto v Italy[15] the applicant had lost light and view as a result of the erection of a tall building on adjoining land.   The domestic courts accepted that the building had been erected illegally and should be demolished but the domestic authorities had failed to enforce this.  It was held that there was a violation of A1P1 and damages were awarded.   Accordingly, there is unlikely to be difficulty in establishing that an interference with light can, in principle, violate A1P1.

However, it also seems probable that the defendant to an A1P1 claim would be able to argue that the State was entitled to enforce laws it deems necessary to control property in accordance with the general interest.  Such argument would be supported by analogy with the decision of the Grand Chamber in Pye v United Kingdom[16] in which the system of adverse possession did not violate A1P1.  There would appear to be a sensible argument that the 20 year period operated to control the use of land as part of general land law and was lawful.

However, it would seem rather more difficult to justify the immunity from s3 of the Prescription Act 1832 by the Crown.  In Larkos v Cyprus[17] the Strasbourg Court was satisfied that there had been the violation of a tenant’s rights pursuant to Article 8 in conjunction with Article 14, because, as a government tenant, he did not have the same protection as was conferred upon private tenants. As the violation of Article 8 had been established, the Court did not need to go on to consider the complaint under A1P1 and Article 14.  Larkos may lend support to the argument that Crown immunity is unlawful and discriminatory. 

It has been suggested[18] that the counter argument which may be raised by the Crown in response to a challenge to immunity is that A1P1 is not a method of acquiring rights, but, rather of protecting existing rights - see Wilson v First County Trust (No 2) [19] per Lord Hope.  While it is plainly right that A1P1 does not enable a person to acquire rights, what will be key in most cases, is whether the Crown is seeking to interfere with a right to light which is physically apparent, even if not legally recognised.  The Convention is concerned with protecting substantial real practical rights, and once it is established that this includes a right to light, as set out in Antonetto, then, viewed through the lens of Convention rights, Crown immunity would not appear to be justified.  Further, s4 of the 1959 Act must be read in the light of the principles of interpretation in Ghaidon-Mendoza considered in detail above. 

Conclusion

It appears that there is scope for considerable development of the law in this field.  It is likely that there will be increased reliance upon Article 8 and A1P1 over the next few years and that Convention rights will be increasing utilised as an additional tool available to those asserting a right to light.  While it seems highly unlikely that the central features of the existing legislative scheme will be regarded as incompatible with Article 8 or A1P1 there may well be certain categories of case in which arguments based upon Convention rights may be determinative of the case.

 

[1] [2004] 2 AC557

[2] Paragraph 30-32

[3] Paragraph 39

[4] Paragrah 46

[5] Paragraph 43-44

[6] Paragraph 123

[7] Marckx v Belgium (1979-80) 2 E.H.R.R. 330 at paragraph 31, and re-stated in many later cases

[8] (1986) 9 EHRR 375 at 378

[9] (1998) 26 EHRR 357

[10] Application no. 48995/99, 20 April 2004),

[11] (2005) 41 E.H.R.R. 40 paragraphs 57 to 63. 

[12] (2013) 56 E.H.R.R. 2  paragraphs 214-216,

[13] (2013) 57 E.H.R.R. 12

[14] (1992) 16 EHRR 97 at 112 paragraph 30

[15] (2003) 36 EHRR 10

[16] (2008) 46 EHRR 45

[17] (2000) 30 EHRR 597

[18] Rights of Light The Modern Law Stephen Bickford-Smith, Andrew Francis and Tom Weeks 3rd Edition Jordan Publishing at 17.45

[19] (2008) 46 EHRR 45 at paragraph 60