Our assessment
6.9 The factors set out in paragraphs 6 and 7 above
are significant. It may be that relatively little additional noise
and nuisance would be created in the streets into which the market
would expand. However, we find it hard to accept the that the
establishment for the first time of a market on one's street,
operating potentially three days each week, on top of all the
other commercial activities already taking place there, would
have no significant effect on the overall amount of noise and
nuisance to which the residents would be subjected.
6.10 In our view, therefore, the argument that Article
8 rights are not engaged is unpersuasive.
6.11 On the other hand, it would have been open to
the Council to argue that any increase in the noise and nuisance
would be justifiable under Article 8.2 as being in accordance
with the law and proportionate to a pressing social need to expand
the market in order to protect the rights of others (the market
traders) and (in a small way) advance the economic welfare of
the country. As yet, the Council has not attempted to make that
case, but the fact that the highways in question are already busy
and often noisy trading thoroughfares would be relevant to the
proportionality of any increase in noise.
6.12 We therefore consider that the Bill would
be likely to engage the rights of residents to respect for their
homes and private lives under ECHR Article 8.1, but that the interference
is likely to be justifiable under Article 8.2 in the light of
the considerations outlined in paragraphs 6.9 to 6.11 above.
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