Noise Nuisance and the Right to Respect for Private and Family Life: the Moreno Gomez Case

摘要

It is hoped that it has been shown that the Moreno Gomez case has important implications as to how s.8 of the HRA 1998 has to be applied in cases where the right to family and private life has been violated because of the failure of a local authority to take abatement and enforcement action against a statutory nuisance that is serious enough to amount to an interference with this human right. In such situations, it has been suggested that the statutory protection from civil liability found in the EPA 1990 is not to be applied, as this would also frustrate the aim of the HRA 1998, which is to make available in domestic law the remedy of damages for breaches of human rights. Also, even if it was held in Lam v Brennan And Borough Of Torbay that the policy of the EPA 1990 does not create any duty of care at common law to persons having incurred foreseeable loss as a result of the non-exercise of enforcement powers under the statutory nuisance provisions of the EPA 1990 and that thus no damages can be recovered, such claims can now be founded upon the HRA 1998. Finally, it is important to note that the above analysis shows how the HRA 1998 can now provide remedies which were unavailable before its coming into force under English law, especially when there exists a statutory limitation on civil liability claims against a public authority or when the existing remedies arising under common law are extremely limited.