Lopez Ostra v Spain ECHR Ser A vol 303-C 41/1993/436/515

Gregoria Lopez Ostra lived in Lorca, Murcia, where there were leather industries. One of these, situated 12 meters from her home, released gas fumes of such intensity that it caused health problems to her daughter, the local authorities had to evacuate them for three months in 1988. The case was referred to the Court by the European Commission of Human Rights under the declaration whereby Spain recognised the compulsory jurisdiction of the Court on violation of art 8.1 (Everyone has the right to respect for his private and family life, his home and his correspondence) of the Convention for the Protection of human Rights and Fundamental Freedoms by the Kingdom of Spain in not acting to deal with the smells of the company

51. Naturally, severe environmental pollution may affect individual’s well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely... Whether the question is analysed in terms of a positive duty on the State - to take reasonable and appropriate measures to secure the applicant’s rights … or in terms of and “interference by a public authority” to be justified … the applicable principles are broadly similar. In both context regard must had to the fair balance that has to be struck between the competing interest of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation. 52. As the Commission pointed out, the town allowed the plant to be built an its land and the State subsidise the plant´s construction 55. The Court considers… whether the national authorities took the measures necessary for protecting the applicant’s right to respect for her home and for her private and family life… 56. the municipality not only failed to take steps to that end… but also resisted judicial decision to that effect … other State authorities also contributed to prolonging the situation 58. The Court considers that the State did not succeed in striking a fair balance between the interest of the town’s economic well-being – that of having a waste-treatment plant - and the applicant’s effective enjoyment of her right to respect for her home and her private and family life.