Does a risk of an explosion engage Article 8?

15 February 2012 by

Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment

This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.

As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.

Put simply, the challenges were to the adequacy of the risk assessment carried out in respect of a potential escape of LNG from a ship either in or near the port arising as a result of a collision. The challenges had been defeated domestically, principally on the grounds that they were brought well after the expiry of the 3 month time limit applicable to judicial review. In the process, an unfortunate error had been made by the Health and Safety Executive asserting that it had carried out an assessment of the risks arising out of the presence of LNG, when sailing or berthed, only then to withdraw that assertion after the case had initially gone to the Court of Appeal and that assertion had been referred to by the judges. Attempts by the applicants to re-open the case were in due course dismissed, principally on the grounds that this mistake of fact by the HSE, and hence by the Court, was not part of the essential reasoning of the court. Hence, though the courts were not disposed to rate the merits of the applicants’ underlying claim highly, there was no ultimate adjudication on whether the risks had or had not been adequately assessed.

Now to Strasbourg. The general approach to Article 8 environmental claims was set out by the Court in fairly boilerplate terms,

217.  The Court reiterates that in a case involving decisions affecting environmental issues there are two aspects to the inquiry which it may carry out. First, the Court may assess the substantive merits of the national authorities’ decision to ensure that it is compatible with Article 8. Second, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual……..

218.  It is for the national authorities to make the initial assessment of the “necessity” for an interference. They are in principle better placed than an international court to assess the requirements relating to the transport and processing of LNG in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community. The Court has therefore repeatedly stated that in cases raising environmental issues the State must be allowed a wide margin of appreciation.

– though the Court introduced a new phrase in [198] “It is primordial that the machinery of protection established by the Convention is subsidiary…” – terminology explored in a related post of today.

However, a threshold point was taken by the UK. It said that because no severe environmental pollution had actually occurred, and because the degree of probability of marine risks (i.e. collision and explosion) occurring was extremely small, Article 8 was not applicable. It founded on an inadmissibility decision, Asselbourg in which the Court had said:

In the instant case, the Court considers that the mere mention of the pollution risks inherent in the production of steel from scrap iron is not enough to justify the applicants’ assertion that they are the victims of a violation of the Convention. They must be able to assert, arguably and in a detailed manner, that for lack of adequate precautions taken by the authorities the degree of probability of the occurrence of damage is such that it can be considered to constitute a violation, on condition that the consequences of the act complained of are not too remote (see, mutatis mutandis, the Soering v. the United Kingdom judgment of 7 July 1989….). In the Court’s opinion, it is not evident from the file that the conditions of operation imposed by the Luxembourg authorities and in particular the norms dealing with the discharge of air-polluting wastes were so inadequate as to constitute a serious infringement of the principle of precaution.

The applicants sought to distinguish this, saying that Asselbourg was a continuing nuisance case where the evidence advanced was not convincing. The Court did not address one way or another the Asselbourg analysis. But it agreed with the Applicants that Article 8 was applicable. It acknowledged that there was no suggestion that the normal operation of the LNG terminals posed any risk to the applicants or to the environment. Having noted that the terminals needed environmental assessment, and the carrying out of a COMAH report (see at recent post here on this) was also required due to the potential risks of fire and explosion, the Court simply stated

192.  In the circumstances, the Court is satisfied that the potential risks posed by the LNG terminals were such as to establish a sufficiently close link with the applicants’ private lives and homes for the purposes of Article 8. Article 8 is accordingly applicable.

So the Court was deciding the applicability of Article 8 in the light of the general subject-matter (fire, explosion) rather than via some sort of threshold investigation of any claim that the terminals had not been adequately assessed and/or that the risk were higher than had been assessed.

As I have said, the Article 8 claim did not avail the applicants in the end. It had 2 limbs; they complained about the adequacy of the assessment, and about the lack of information provided to them about the risks posed by the terminals. The first limb involved a review of the assessment carried out, both in substantive and procedural decision-making terms. Yes, there must be appropriate investigations and studies ([220]), but, at [231]

The Court reiterates that the protection afforded by Article 8 in this area does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In the present case, there was a coherent and comprehensive legislative and regulatory framework governing the activities in question. It is clear that extensive reports and studies were carried out in respect of the proposed LNG terminals, by both HSE and MHPA, in cooperation with the developers. The planning and hazardous substances authorities as well as the domestic courts were satisfied with the advice provided by the relevant authorities. In the circumstances, it does 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…

So investigations and studies must be “appropriate” but “comprehensive and measurable data” is not required on every issue. Drawing the line is not easy, to say the least, based upon this distinction.

The second limb of the Article 8 challenge concerned the lack of information provided to the applicants during the consenting process and the challenges which followed. They founded on the well-known case of Guerra and the equally important but less well-known case of Giacomelli which confirm that a right to environmental information is an aspect of the protection conferred by the Article 8 right. The UK government put 2 closely linked arguments in response. First, they said that the applicants had not exhausted local remedies because it had not pursued any outstanding requests via the long chain of potential appeals, namely, the Information Commissioner to the Information Tribunal to the Upper Tribunal to the Court of Appeal. Secondly, they denied breach of Article 8, in particular saying that the Article 8 right to information conferred by Giacomelli did not extend to a right to see all the studies which had been used in the assessment process. It was sufficient that the port made the public aware of its conclusions of those studies and the conclusions of its risk assessments, coupled with information in the Environmental Statement accompanying the planning and hazardous substances applications.

The Court accepted the UK’s arguments. The detail is at [248]-[250]. The gist is that by a combination of the information actually provided, and the domestic regimes enabling the provision of additional environmental information, the UK had fulfilled its positive obligations under Article 8. In effect, therefore, there was no right to Article 8 environmental information wider than that available under the freedom of information/environmental information regime, though it did not make this point in terms. It found no violation, and hence did not find it necessary to rule on the Government’s objection that the applicants had not exhausted local remedies.

Two things, therefore, of more general application. The first is that in a case of this sort, the Article 8 threshold is not high. If the consequence of an activity, if things go wrong, would obviously cause harm, a defendant has to address his arguments to breach, not to the threshold. The second is the point just made, namely that Article 8 may not carry a right to information wider than that contained in the Environmental Information Regulations – my caveat lies in the fact that the assessment of the adequacy of information provided was, as ever, case-specific.

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