Two recent judgments have shed more light on the relationship between human rights and the environment.

In both cases it was found, among other things, that the claimants' rights under article 8 of the European Convention on Human Rights (ECHR) to respect for their home, and family and private lives had been infringed.

Both cases raise significant issues for major projects, utilities and public bodies.In the first case, Marcic v Thames Water Utilities Ltd [2001] 3 All ER 698; NLD 10 July 2001, Mr Marcic sought an injunction and damages, claiming that the increasingly frequent flooding of his property by backflow from Thames Waters' sewers was a nuisance for which the sewerage undertaker was liable at common law and under the Human Rights Act 1998.

Thames Water was aware of the problem.

Expert opinion was that only expensive works would significantly reduce the risk of flooding.

There was little prospect of such works being done under the company's existing system for prioritising improvements.In a trial of liability (quantum was dealt with at a subsequent hearing), the High Court held that while Thames Water was not liable at common law, the company was liable under the Human Rights Act 1998.

The court found that it was reasonably practicable to remove the risk of flooding; that having failed to take the appropriate action an unjustified infringement of Mr Marcic's rights had occurred under article 8 of the ECHR and article 1 of the first protocol to the ECHR.

Therefore, Thames Water's inactivity was unlawful conduct under section 6(1) of the 1998 Act.

It is believed that Thames Water is appealing this decision.In the second case, Hatton and others v The United Kingdom [2001] App.

36022/97, 2 October, a number of claimants allegedly suffered disturbance because of night flights from Heathrow Airport.

Before the European Court of Human Rights, the claimants argued that an increase in night time noise, following the introduction of a new quota scheme for night flights in 1993, interfered with their rights under article 8 of the ECHR.

They also claimed that judicial review was not an effective remedy within the meaning of article 13 of the convention (right to an effective remedy by a national authority where convention rights are violated) because it failed to examine the merits of decisions by public authorities and was prohibitively expensive for individuals.

The court held that both articles 8 and 13 of the convention had been violated.With regard to article 8, the UK government had not interfered with the applicants' family or private lives because neither it, nor any of its agencies owned, controlled or operated the airport and aircraft involved.

However, it did have a positive duty under article 8 to take reasonable and appropriate measures to secure the applicants' rights and to strike a fair balance between the competing interests of the individual and the community as a whole.

In doing so, it was important to have regard to the whole range of material considerations and to recognise that in the particularly sensitive area of protection of the environment, mere reference to the economic well-being of the country is not sufficient to outweigh the human rights of others.

Instead, states should minimise as far as possible interference with these rights by taking steps to identify alternative solutions.

This would require a proper and complete investigation before the relevant project begins, to find the best possible solution to strike the right balance.

This had not been done by the UK government in implementing the 1993 night flights scheme.Only limited research had been conducted to assess the importance of night flights to the national economy and on the disturbance to sleep patterns caused by such flights.

Even given the margin of appreciation left to the state, the government's failure to strike a fair balance between the UK's economic well-being and the claimants' effective enjoyment of their right to respect for their homes, and private and family lives was a violation of article 8 of the ECHR.The court also concluded that the scope of the judicial review remedy in the domestic courts was insufficient in the present case, being limited to classic English public law concepts and not permitting a consideration of whether the increase in night flights under the 1993 scheme was a justifiable limitation on the human rights of those living around Heathrow airport.

Therefore, article 13 was violated.