CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 octobre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 12360/86 by Michael Sydney RYDER against the United Kingdom             The European Commission of Human Rights sitting in private on 7 October 1987, the following members being present:                   MM.   C.A. NØRGAARD, President                      S. TRECHSEL                      F. ERMACORA                      M.A. TRIANTAFYLLIDES                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   J. RAYMOND, Deputy Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 22 August 1986 by Michael Sydney RYDER against the United Kingdom and registered on 27 August 1986 under file No. 12360/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a British citizen born in 1934 and resident in Hertfordshire.   The facts as presented by the applicant may be summarised as follows.           The applicant has owned the freehold of land and premises in Kings Langley since 1965.   Before that date, commencing in late 1963 or early 1964, he leased the property from the former owner.   The applicant used this land for a builders' yard and for mechanics' workshops.   The local council was aware of this and raised no objection.           However in April 1982, at the council's suggestion, the applicant applied for an "established use certificate".   Under the planning legislation, anyone who has occupied and used property for the same purpose since 1963 can obtain such a certificate and continue the same use.   The council, however, despite having assured the applicant that obtaining such a certificate would be a mere formality, refused the certificate.   An enforcement notice ordering the applicant to discontinue his unauthorised business activities was issued on 27 April 1985.           The applicant appealed to the Secretary of State for the Environment.   An inspector was appointed by the Secretary of State and an inquiry held on 4-5 March 1986, at which oral evidence was heard. However the inspector found in favour of the local council in a decision dated 18 June 1986.   He considered that the evidence failed to show that the applicant had used the land in 1963 for the purposes of his business and that the evidence instead indicated that he first occupied the site in 1964.   The applicant had also argued that the site was secluded, that he had carried out his business there for 22 years without previous objection, and that he provided facilities for other small businesses, which had helped employment in the area.   The inspector held, however, that the facts of the situation did not amount to the "very special circumstances" required to justify an exception to the policy prohibiting industrial development in the green belt.           The applicant was advised by his solicitors and counsel that the inspector's decision was not "appealable" (1).         ----------   (1)      Section 246 of the Town and Country Planning Act 1971         provides for appeals to the High Court on a point of law         against decisions of the Secretary of State on enforcement         notices.   The High Court may also interfere with a decision         if the Secretary of State, or his inspector, acted on         no evidence; or if he came to a conclusion to which, on the         evidence, he could not reasonably come; or if he has given a         wrong interpretation to the Statute's wording; or if he has         ignored relevant matters or taken into account irrelevant         matters; or if the rules of natural justice have not been         observed; or if a decision is unintelligible or inadequate.         Further appeals from a High Court decision lie to the Court of         Appeal and, thereafter, with leave, to the House of Lords.   COMPLAINTS           The applicant complains that the enforcement notice and the inspector's decision to uphold the notice constitute an unjustified interference with his right to the peaceful enjoyment of his property contrary to Article 1 of Protocol No. 1.   He also complains that he received no compensation, although compliance with the enforcement notice will result in the destruction of a business which he has built up over 20 years.           The applicant contends that the decision to interfere with his business and property rights was not made by an independent authority as required by Article 6 para. 1 of the Convention.   He argues that the inspector who decided the appeal is an employee of the Department of the Environment, which in fact issued the "green belt" policy.   The applicant also invokes Article 13 of the Convention and complains that he has no remedy for his above complaints.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 August 1986 and registered on 27 August 1986.           After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 4 December 1986, when it decided to adjourn the case pending the outcome of Application No. 11723/85, Chater v. the United Kingdom.   The Commission declared the latter application inadmissible on 7 May 1987.     THE LAW   1.       The applicant complains that his local authority's enforcement notice, requiring him to cease using his property for business purposes, and the inspector's decision refusing his appeal against the notice, constitute an unjustified interference with his right to the peaceful enjoyment of his property, contrary to Article 1 of Protocol No. 1 (P1-1).   He also complains of a lack of compensation.           Article 1 of Protocol No. 1 (P1-1) provides as follows:           "Every natural or legal person is entitled to the peaceful         enjoyment of his possessions.   No one shall be deprived of his         possessions except in the public interest and subject to the         conditions provided for by law and by the general principles         of international law.           The preceding provisions shall not, however, in any way impair         the right of a State to enforce such laws as it deems necessary         to control the use of property in accordance with the general         interest or to secure the payment of taxes or other         contributions or penalties."             The Commission finds that the interference with property rights disclosed by this application falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 (P1-1) as a control of the use of property.   The Commission must therefore consider whether, on the facts of this particular case, these measures were proportionate and necessary, in accordance with the general interest.           The Commission notes that the purpose of the measures was to protect the rural character of a protected green belt area.   The Commission recognises that planning controls are widely considered as necessary and desirable in member States of the Council of Europe in order to protect and preserve the environment.   The Commission accordingly finds that the measures applied in furtherance of the green belt policy were prima facie in accordance with the general interest.           Concerning the proportionality of the measures taken against the applicant, which require him to cease use of his premises for his business, the Commission recalls that the applicant had at no previous time applied for planning permission for his business and it notes that at all times such use had been unlawful under the relevant legislation.           The Commission is also satisfied that the domestic law permitted the competent planning authorities to take into account, as a material consideration, the personal circumstances for the owner as a result of a possible adverse planning decision.   The Commission finally observes that, in principle, the protection of property rights ensured by Article 1 of Protocol No. 1 (P1-1) cannot extend to the granting of compensation for the cessation of an unlawful use of property (No. 11723/85, Dec. 7.5.87, to be published in D.R.).           In the light of the above considerations, the Commission finds that a proper balance has been struck between the applicant's personal interests and the general interest.   The control of the applicant's property is therefore in accordance with the requirements of Article 1 of Protocol No. 1 (P1-1).           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that the planning decisions in his case were not made by an independent tribunal, as required by Article 6 para. 1 (Art. 6-1) of the Convention.   He submits that the inspector who decided the appeal against the enforcement notice is an employee of the Department of the Environment, which issued the green belt policy, which in turn restricts the use of his property.           The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:           "In the determination of his civil rights and obligations          ... everyone is entitled to a fair and public hearing         within a reasonable time by an independent and impartial         tribunal established by law..."           Insofar as the applicant disputes with the planning authorities the extent of the lawful use of his property, the Commission considers that such disputes may be said to involve the applicant's civil rights and obligations.   The question thus arises whether the applicant has had a possibility to have these disputes determined by an independent tribunal, as envisaged by Article 6 para. 1 (Art. 6-1) of the Convention.           It is clear that the local authority, the inspector and the Secretary of State for the Environment cannot be considered to be independent tribunals satisfying the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   However an appeal against a decision of the Secretary of State, or his inspector, lies to the High Court under Section 246 of the Town and Country Planning Act 1971 and may also be the subject of judicial review (see footnote to p. 2 above).   The applicant was advised by counsel that the inspector's decision was not "appealable".   If this advice is to be construed as meaning that the applicant had no prospects of a successful appeal, the Commision notes that the object of Article 6 (Art. 6) is necessarily limited to the provision of procedural guarantees and that it cannot be required to ensure decisions to the systematic personal advantage of all litigants. However, if counsel's advice to the applicant is construed as meaning that the scope of the remedy was inadequate, the Commission would refer to its case-law that the scope of judicial review of administrative decisions may be of a limited nature and nevertheless satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   In the case of Kaplan v. the United Kingdom (No. 7598/76, Dec. 17.7.80, D.R. 21 p. 5 paras. 157-162) the Commission made the following observations: -           "157.   Where an individual's private rights have been         adversely affected by action taken by a public authority,         Article 6 (1) (Art. 6-1) plainly entitles him, in the Commission's         opinion, to obtain access to such court remedies as         exist within the domestic system for the purpose of         asserting the rights affected....           158.   However there is no question of the present applicant         having been denied access to the existing court remedies         in which he could seek judicial review of the Secretary of         State's decisions.   His complaint is that these remedies         were inadequate in scope because the courts could not go         fully into the merits of the Secretary of State's decision         and substitute their decision for his if they disagreed         with him.   The question arises therefore whether he had a         right to a court with jurisdiction to determine the         full merits of the matter.           159.   The Commission has already noted that in the Contracting         States discretionary powers are frequently conferred on         public authorities to take actions affecting private rights.         It is also a common feature of their administrative law, and         indeed almost a corollary of the grant of discretionary         powers, that the scope of judicial review of the relevant         decisions is limited.            ...           161.   An interpretation of Article 6(1) (Art. 6-1) under which it was         held to provide a right to a full appeal on the merits of         every administrative decision affecting private rights would         therefore lead to a result which was inconsistent with the         existing, and long-standing, legal position in most of the         Contracting States."           In the light of the above considerations the Commision finds that the applicant had the opportunity to challenge the planning decision of the inspector before the High Court pursuant to Section 246 of the Town and Country Planning Act 1971.   Accordingly he had the possibility of access to an independent tribunal for a determination of his civil rights and obligations, within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   It follows that this aspect of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant finally complains of the absence of an effective remedy in respect of his complaints.   He invokes Article 13 (Art. 13) of the Convention, which provides as follows:           "Everyone whose rights and freedoms as set forth in this         Convention are violated shall have an effective remedy         before a national authority notwithstanding that the         violation has been committed by persons acting in an         official capacity."           However, Article 13 (Art. 13), as a more general guarantee, is not applicable in cases where the more specific guarantees of Article 6 (Art. 6) apply, Article 6 (Art. 6) being the lex specialis in relation to Article 13 (Art. 13).   The Commission, therefore, having found above that Article 6 (Art. 6) applies, finds no separate issue arises under Article 13 (Art. 13) of the Convention in the present case.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.         Deputy Secretary to the Commission         President of the Commission                      (J. RAYMOND)                           (C.A. NØRGAARD)