WARD v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant, Mr Martin Ward, is an Irish national born in 1941 and living in London. He is represented by Mr C. Johnson, a solicitor practising in London. The applicant is a traveller who, since 1972, has lived with his family in a caravan on Westway Travellers' Site. This site was established as an official local authority site in 1975 under the duty to provide gypsy sites contained in the Caravan Sites Act 1968. The site is now leased by the Royal Borough of Kensington and Chelsea and managed by the London Borough of Hammersmith and Fulham. It is located beneath two flyovers that make up part of the motorway bridge known as the Westway leading from Marylebone Road in London. A railway line also passes nearby. Plots 1 and 20 were directly under the flyover, the carriageways to the east and west were separated from the site by a concrete barrier and vehicles passed within several metres of residential caravans. Virtually since the opening of the site, the applicant has been campaigning for its relocation because of the pollution and noise, coming from the adjacent highways. In November 1992 two independent Environmental Health Officers inspected the site and concluded: "The present conditions are unsatisfactory, and are prejudicial to health within the meaning of s. 79 of the Environmental Protection Act 1990. Environmental issues, such as rat infestations, lead levels in dust and noise levels, smells and nuisance from adjoining premises are largely beyond the control of the managing authority. In our opinion the site is not suitable for residential occupation. The original decision to locate the site in such a position fails any commonsense assessment of the suitability of the environment." They noted that while a number of items could be remedied by works, for example, site drainage, other problems, such as, nitrous oxide poisoning and noise levels resulted from the site's location and could not be remedied. Following the coming into force of the Human Rights Act 1998, the applicant instructed his solicitors to obtain an updated environmental report from the two officers who produced the 1992 report. This was finalised in February 2002 and confirmed the earlier conclusion that it was not a suitable location for a gypsy site. The two experts noted that lead levels had dropped since 1992 due to a ban on leaded petrol and this was no longer a ground of concern. It found the residents at the site were being exposed to nitrogen dioxide levels above the air quality objective of 21 ppb (a mean concentration in 1992 of 24.2 and in 2001 of 25.6). The report noted that air pollution in the United Kingdom was unlikely to cause any serious health effects in the population as a whole but that young children, the elderly or those suffering from respiratory problems might be more sensitive to air pollution. No formal measurement of noise levels was made but it was noted that road traffic noise was intrusive and almost continuous during both their visits. Given the location between major roads and adjacent to a railway they recommended formal monitoring of noise levels be undertaken. The applicant presented the report to the Royal Borough and renewed requests for relocation of the site, invoking arguments under the Convention. By letter of 23 August 2002, the Royal Borough responded to the applicant's complaints stating that the alleged treatment failed to satisfy the degree of severity for a breach of Article 3 and that no claim arose under Article 8 as it would be akin to interpreting the provision as requiring a right to be given a home. It denied that it was under any duty to provide a new site. The Royal Borough obtained that year Government approval of a major grant for 75% of the total expenditure for refurbishment of the site then estimated at GBP 700,000. The applicant commenced judicial review proceedings in December 2002. On 12 May 2003, the High Court judge refused the application on the ground of delay. Following a hearing on 30 July 2003, the Court of Appeal dismissed his appeal. Lord Justice Carnwath noted the delay in bringing the proceedings: “In this case it seems to me that the important issue is the delay in bringing the proceedings. From October 2000 the rights under the Human Rights Act 1998 were established. Mr Ward was being advised by his present solicitors ... In November 2000 he was also being advised by [counsel] who appeared before us. There was no doubt as to the nature of his rights. The only excuse put forward for the delay until the end of 2002 was the time taken to get this report. However the report itself, although detailed, is reiterating matters which [the applicant] had been asserting for many years. The council has had its own reports in 2000 which showed as a matter of principle that there were major problems with the site. It seems to me that during this time the council was, to [the applicant's] knowledge presumably, putting forward major proposals for refurbishment with the support of the majority of the residents. It was crucial that, if there was some legal error in the way the council approached it, it should be established as soon as possible. In my view the judge was right to refuse permission on the ground of delay. I see no arguable basis for appeal.” Concerning the substantive issues, he held: “.. The problem in this case is that it is accepted that, as a result of changes in the law since the 1968 Act, the council is under no duty to provide [the applicant] with a site here or anywhere else. In those circumstances, it seems difficult to see that he can argue for a right to be relocated to another and better site. If the argument is right, it is difficult to see what distinction there would be between [the applicant] and any other inhabitant of a caravan or a house who is concerned about pollution levels in his home. In my view, there is nothing in European law or, more particularly the cases we have been shown, which provides any support for such a claim. Under English law, [the applicant] has potential remedies under the Environmental Health Act which do not seem to have been activated. As I understand from the evidence, the council is taking active measures to improve the site. The more general problems about which [the applicant] complains are the pollution levels, nitrogen dioxide and noise. Those are problems which, unhappily, are shared by a number of urban sites. The council's Environmental Health Officer has acknowledged the problems but considers they do not cause unacceptable conditions ...”