EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 19178/91

                          John Bryan

                            against

                      the United Kingdom

                   REPORT OF THE COMMISSION

                   (adopted on 28 June 1994)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-11) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 12-16). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 17-32) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 17-23). . . . . . . . . . . . . . . . . . .3

     B.   Relevant domestic law

          (paras. 24-32). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

     (paras. 33-47) . . . . . . . . . . . . . . . . . . . . .9

     A.   Complaint declared admissible

          (para. 33). . . . . . . . . . . . . . . . . . . . .9

     B.   Point at issue

          (para. 34). . . . . . . . . . . . . . . . . . . . .9

     C.   As regards Article 6 para. 1 of the Convention

          (paras. 35-46). . . . . . . . . . . . . . . . . . .9

          CONCLUSION

          (para. 47). . . . . . . . . . . . . . . . . . . . 11

CONCURRING OPINION OF MR. N. BRATZA . . . . . . . . . . . . 12

DISSENTING OPINION OF MM. TRECHSEL, ROZAKIS,

GEUS, REFFI AND CABRAL BARRETO  . . . . . . . . . . . . . . 14

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . 15

APPENDIX II  : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 16

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicant is a British citizen, born in 1931 and resident in

Warrington.  He was represented before the Commission by

Mr. R.M. Napier, of Messrs Albinson Napier and Co., Warrington.

3.   The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent, Mr. I. Christie

of the Foreign and Commonwealth Office, London.

4.   The case concerns proceedings by which the High Court reviewed

a decision, taken by an inspector appointed by the Secretary of State

for the Environment, to confirm an enforcement notice which had been

served on the applicant.  It raises issues under Article 6 para. 1 of

the Convention.

B.   The proceedings

5.   The application was introduced on 29 October 1991 and registered

on 9 December 1991.

6.   On 7 July 1992, the Commission decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on the admissibility and merits of the

applicant's complaint under Article 6 para. 1 of the Convention.

7.   The Government's observations were submitted on 4 November 1992.

The applicant replied on 29 December 1992 and the Government submitted

further observations on 29 July 1993.

8.   On 2 April 1993 the Commission decided to hold a hearing of the

parties.  The hearing was held on 14 October 1993.  The Government were

represented by Mr. I. Christie, Agent. Mr. D. Pannick, Q.C., and

Mr. D. Anderson, Counsel, and Ms. V. Harrison of the Department of the

Environment, Adviser.  The applicant was represented by Mr. R. Drabble

and Mr. E. Owen, Counsel, and Mr. R.M. Napier, solicitor.  The

applicant and Mrs. Bryan were also present.

9.   On 14 October 1993 the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention.  It

declared inadmissible the remainder of the application.

10.  The text of the Commission's decision on admissibility was sent

to the parties on 2 November 1993 and they were invited to submit such

further information or observations on the merits as they wished.  No

further submissions were received.

11.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

12.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present :

     MM.  C.A. NØRGAARD, President

          S. TRECHSEL

          A. WEITZEL

          F. ERMACORA

          G. JÖRUNDSSON

     Mrs. G.H. THUNE

     Mr.  C.L. ROZAKIS

     Mrs. J. LIDDY

     MM.  L. LOUCAIDES

          J.-C. GEUS

          M.P. PELLONPÄÄ

          G.B. REFFI

          M.A. NOWICKI

          I. CABRAL BARRETO

          B. CONFORTI

          N. BRATZA

13.  The text of this Report was adopted on 28 June 1994 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14.  The purpose of the Report, pursuant to Article 31 of the

Convention, is :

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

15.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

17.  On 4 December 1989 an enforcement notice was issued and was

served on the applicant by the Vale Royal Borough Council ("the

Council") requiring the demolition of two brick buildings on land which

the applicant had bought in 1987.  The enforcement notice recited that

there appeared to the Council to be a breach of planning control in

that the two brick buildings had been erected without the required

planning permission.  The notice required the applicant to demolish the

buildings and remove the building materials within three months.

18.  The applicant appealed to the Secretary of State for the

Environment under Section 174 (2) (a),(b),(g) and (h) of the Town and

Country Planning Act 1990 (TCPA), which consolidated and amended the

earlier legislation.

19.  On 1 October 1990 an inspector dismissed the appeal.  He was a

salaried inspector, a civil servant and an employee of the Planning

Inspectorate, appointed by the Secretary of State after approval of the

Lord Chancellor.  He held, inter alia, as follows:

     [The appeal on ground (b)]

     "12. What I need to decide in respect of this ground of appeal

     is whether, as a matter of fact and degree, the buildings could,

     from their appearance and layout, be considered to have been

     designed for the purposes of agriculture.  I conclude, from

     examination of photographs taken during construction and from

     noting the alterations made since, that the Council were right

     to be concerned that the appeal buildings had the appearance of

     large detached houses.  The size, layout, and original external

     appearance of the buildings and their detailing did little to

     change that view.

     13.  In my opinion, as originally constructed, the buildings

     would have led any reasonable person to have concluded that he

     or she was looking at the start of a small new detached housing

     estate.  Indeed, that appeared to be the widely held view of many

     local people, supported by the local Member of Parliament, who

     were concerned to see what was being built on the edge of the

     village.  The more recent construction of an, as yet, uncompleted

     but similar building close to the 2 appeal buildings serves to

     compound the effect.

     14.  But it is the original appearance of the 2 appeal buildings

     and particularly the first assessment of the Ministry of

     Agriculture Fisheries and Food which convinces me that the

     buildings were not requisite or reasonably necessary for the

     purposes of agriculture.  Numerous features of the buildings were

     more suited to houses than barns.  The original openings in

     building No. 1 were said to be doorways for a veal calf unit.

     But this building did not incorporate internal drainage

     considered necessary for such stock.  The doorways appeared to

     have been more likely to have been useful as window openings,

     none reached ground level as built;  one was almost waist high

     above outside ground level measured from the lower edge of the

     unbonded brickwork added later.  Other features in both buildings

     include the extensive use of Georgian style windows and other

     windows made for domestic use.  I understand that Mr Bryan's

     contacts allowed him to buy these windows cheaply.  But whatever

     their source, they contribute to an impression that the buildings

     look more like houses than barns.  There are other features which

     add to that view.  The use of domestic style eaves and gable

     barge boarding.  The residential look of the 'porch' to No 1

     building.  And the [Ministry of Agriculture, Fisheries and

     Food's] view about the uneconomic layout of both buildings as

     originally built all add to the impression that these buildings

     were not designed for agricultural purposes, albeit they have

     since been modified and adapted for such a use.

     15.  You said that the buildings looked like many local old

     barns.  But it is my view that, as originally built, the appeal

     buildings would have looked much more like houses.  They did not

     look as if they had been designed for the purposes of

     agriculture.  My opinion is not altered by my finding them now

     being used for storing hay.  The appeal on ground (b) fails.

     The appeal on ground (a)

     16.  The appeal buildings lie in part of the green belt ...

     They also lie within the Higher Whitley Conservation Area but

     outside the village policy area for Higher Whitley shown on the

     draft Vale Royal Borough Local Plan.  In my opinion, the decision

     turns on the following main issues.  Whether, if the development

     is inappropriate to the green belt, there are any special

     circumstances to justify the granting of planning permission;

     secondly, whether the appeal buildings enhance or preserve the

     character or appearance of the Conservation Area.  I shall also

     consider the effect of the development on the countryside

     surrounding the village.

     ...

     17.  The appeal buildings have neither enhanced nor preserved

     the appearance of this part of the Conservation Area, rather the

     reverse.  Much of the pleasant nature of the Area is derived from

     the grouping of the older housing around the centre and from its

     rural and agricultural setting.  The 2 appeal buildings look like

     part of a small estate of detached houses with access roads and

     suitable garden areas.  The third building, not subject of this

     appeal, exacerbates this impression.

     19.  These objections amount to sound and clear cut reasons why

     planning permission should be withheld.  The fact that other

     buildings or buildings of a broadly similar nature, if considered

     to be designed for agricultural purposes, could be built under

     the provisions of the Town and Country Planning General

     Development Order 1988, does not affect my decision.  The appeal

     on ground (a) fails.

     The appeal on ground (g)

     20.  You said that demolition of the buildings and the removal

     of the materials was an excessive requirement.  I do not agree.

     Harm to the purpose of the green belt has been caused.  The

     appearance and character of the Conservation Area has not been

     either enhanced or preserved.  Encroachment on the countryside

     has occurred.  Making the buildings look more like those which

     might have been permitted development as you suggested could

     mitigate a little of the harm I have identified.  But this is not

     just a matter of cosmetics.  The main objections would remain.

     In my opinion, the proper and necessary course of action is that

     required by the notice.  That includes removal of materials.

     Such a requirement would not preclude their re-use on site for

     any possible future permitted development.  The appeal on ground

     (g) fails.

     The appeal on ground (h)

     21.  ... Mr. Bryan wanted more time in order to erect a

     replacement or replacements before demolition.  I see no need to

     insist on a period which would make undue difficulty for him.

     I will increase the period to 6 months. ...

     22.  I have taken account of all the other matters raised,

     including the possibility of your client putting up a large steel

     clad building under permitted development rights, but find they

     do not affect my decision."

20.  The applicant appealed against the inspector's / Secretary of

State's decision under Section 289 TCPA.  In his Notice of Motion, the

applicant first (grounds 1 and 2) alleged that the inspector had "erred

in law in applying the wrong test in deciding whether the buildings

were permitted development under the provisions of the ... General

Development Order" and "in considering that the said buildings were not

requisite or reasonably necessary for the purposes of agriculture when

there was no evidence upon which any reasonable inspector could so

find".  The subsequent grounds of appeal dealt expressly with grounds

(a) and (g) of the appeal under Section 174 (2) TCPA to the Secretary

of State.

21.  The appeal was dismissed by the High Court on 8 March 1991, the

judge, Mr Lionel Read, Q.C., finding inter alia as follows:

     "A principal argument on behalf of the applicant at the inquiry

     under [ground] (b) was that the erection of the two buildings was

     permitted development under the General Development Order. ...

     The applicant does not challenge the inspector's decision under

     ground (b).  Nevertheless paragraphs 14 and 15 of the decision

     letter, where he is still dealing with that ground, are relevant

     to the court's consideration of his decision on grounds (a) and

     (g) ...

     In my judgment ... it cannot be said that the inspector failed

     to take into account the fact that the applicant might, within

     his General Development Order rights, erect buildings of a

     broadly similar nature.  He addressed that very consideration in

     terms at paragraph 19 of his decision letter.  Because the

     applicant had those rights and wanted more time to erect a

     replacement or replacements, the inspector extended the

     applicant's time for complying with the enforcement notice under

     ground (h).

     Whether the existence of these General Development Order rights

     provided sufficient reason for the inspector to grant planning

     permission for the buildings in fact erected, whether or not

     conditioned as suggested by the applicant, was a matter for

     judgment  - the inspector's judgment.  Whether another decision-

     maker would have reached the same conclusion as did this

     inspector is not to the point.  Nor is the view of this court,

     which does not sit on appeal from the judgment of inspectors,

     relevant.  I am unable to say that there was anything irrational

     in the inspector's decision.  In particular, the question whether

     the alterations proposed to a building were, as he evidently

     thought, a 'matter of cosmetics' and would not meet the main

     objections was entirely a matter of planning judgment for him.

     It is to be remembered that, in order to stay within his General

     Development Order rights, the applicant must erect replacement

     buildings which, by their appearance and layout, could be

     considered as designed for the purposes of agriculture.  If they

     are, their effect on the Green Belt, the countryside and the

     Conservation Area is irrelevant to the exercise of that right.

     That does not, however, in my judgment mean that the inspector

     acted irrationally in concluding that the buildings in fact

     erected without permission under the General Development Order

     were objectionable and should be demolished.  In the result, I

     find no error of law and I dismiss the application."

22.  At the hearing held before the Commission on 14 October 1993, the

applicant's representatives stated that, although they had not

represented the applicant before the High Court, they surmised that the

challenge to the inspector's ground (b) reasoning had been raised in

the Notice of Motion and then abandoned at the hearing because of the

limited jurisdiction of the High Court.

23.  Leave to appeal to the Court of Appeal was refused.  The Court

of Appeal, on 11 June 1991, also refused leave to appeal.

B.   Relevant domestic law

24.  By reason of Article 3 and Class A of Part 6 of Schedule 2 to the

General Development Order 1988, planning permission is granted for the

following development:

     "A.  The carrying out on agricultural land comprised of an

     agricultural unit of -

     (a)  works for the erection, extension or alteration

          of a building, or

     (b)  any excavation or engineering operations, reasonably

          necessary for the purposes of agriculture within that unit."

25.  Planning permission granted by the General Development Order is

known as deemed planning permission.  Development is not permitted by

Class A by reason of paragraph A.1(c) if "a building, structure or

works not designed for the purposes of agriculture would be provided

on the land".

26.  Section 64 TCPA provides that application may be made to the

local authority for a determination of whether planning permission is

required for proposed operations on land.

27.  Section 174 (2) TCPA provides that an appeal against an

enforcement notice may be made to the Secretary of State on any of the

following grounds:

     "(a) that planning permission ought to be granted for the

     development to which the notice relates or, as the case may be,

     that a condition or limitation alleged in the enforcement notice

     not to have been complied with ought to be discharged:

     (b) that the matters alleged in the notice do not constitute a

     breach of planning control;

     ...

     (g) that the steps required by the notice to be taken exceed what

     is necessary to remedy any breach of planning control or to

     achieve a purpose specified in Section 173 (4);

     (h) that the period specified in the notice as the period within

     which any step is to be taken falls short of what should

     reasonably be allowed."

28.  Section 175(3) TCPA provides that if an appellant of the local

authority desires, the Secretary of State shall give each of them the

opportunity of appearing before and being heard by a person appointed

by the Secretary of State for the purpose.  Where such a person has

determined an appeal, his decision shall be treated as that of the

Secretary of State.

29.  Section 289 TCPA provides for appeals against a decision of the

Secretary of State under Section 174.  An appeal may be made to the

High Court on a point of law, or the Secretary of State may be required

to state a case for the opinion of the High Court (Section 289 (1)

TCPA).

30.  At the hearing before the Commission on 14 October 1993, the

applicant asserted and the Government accepted that a point of law

includes a review as to whether a decision based on a finding of fact

is perverse or irrational.  However, the court of review cannot

substitute its own decision on the merits of the case for that of the

decision-making authority (cf. para. 21 above).

31.  As an appeal to the High Court under Section 289 (1) is on a

point of law, the High Court has no power to receive further evidence

on primary facts (Green v. Minister of Housing and Local Government

[1963] 1 All ER 578).  Halsbury's Statutes of England and Wales, Fourth

Edition, Vol. 46 (1990 Re-issue) describes many of the cases on the

question of whether a point is one of fact or of law as

"irreconcilable" (p. 836).  Halsbury's Laws of England states that "if

there is no evidence for a particular finding or if the tribunal does

not take into account at all a relevant consideration, there could well

be grounds of appeal raising a question of law.  The contention that

a tribunal has failed to give adequate weight to evidence or sufficient

consideration to a particular circumstance does not afford such

grounds; and the weight which a tribunal gives to a particular piece

of evidence on a particular consideration is a matter for that

tribunal" (Halsbury's Laws of England, Fourth Edition, Vol. 46 (1992

Re-issue), p. 698).  In one recent case, a brick building had been

erected on agricultural land.  The local authority issued an

enforcement notice against which the landowner appealed under grounds

(a), (b), (c), (g) and (h) of Section 174(2) TCPA.  An inspector

determined the appeal, largely against the landowner.  The High Court

judge who heard the landowner's further appeal under Section 289 TCPA

had regard to an affidavit submitted on behalf of the landowner,

considered that the inspector's conclusion that the building was not

"designed for the purposes of agriculture ..." was perverse, and

remitted the question to the Secretary of State.  The Secretary of

State appealed to the Court of Appeal.  The Court of Appeal recalled:

     "An appeal to the High Court under Section 289 lies on a point

     of law only.  The inspector is responsible for finding facts ...

     [O]n an appeal to the High Court, the court should not itself

     receive evidence unless it is argued that the inspector has not

     properly summarised, or has disregarded, some material evidence.

     That is not suggested in his case."

     It continued:

     "... So the exercise [the judge] was carrying out was ... finding

     an explanation for the cavity walls and then ... turning that

     into a finding of fact that was in fact the reason for the cavity

     walls.

     In my view, the judge was not entitled to make such a finding of

     fact.  The inspector had not found that; he had found that the

     cavity walls were not necessary for the purpose of a building for

     agricultural use in connection with this holding. ...

     I therefore conclude that the judge was not justified in

     describing the inspector's finding that the building was not

     designed for agricultural purposes as perverse.  On the contrary,

     in my view this was a finding of fact which, on the evidence

     before him, the inspector was entitled to make." (Clarke v.

     Secretary of State for the Environment and another [1992] 3 PLR

     146).

32.  According to The Planning Inspectorate Executive Agency Framework

Document (1992), the Planning Inspectorate serves the Secretary for

State on appeals and other casework under planning and allied

legislation.  Through the work of the Agency, the policies of the

Secretary of State are taken forward.  Disputes between individuals and

public authorities are resolved against the background of these

policies.  In processing planning appeals, the staff of the

Inspectorate act on behalf of the Secretary of State.  Inspectors,

exercising their own independent judgment, decide cases or make

recommendations to the Secretary of State.  In determining planning

appeals, inspectors act in a quasi-judicial capacity, and are required

to comply with the various procedural rules for the conduct of

enforcement appeals (the Town and Country Planning (Enforcement Notices

and Appeals) Regulations 1981, and the Town and Country Planning

(Enforcement) (Inquiries Procedure) Rules 1981).

III. OPINION OF THE COMMISSION

A.   Complaint declared admissible

33.  The Commission has declared admissible the applicant's complaint

that the review undertaken by the High Court of the decision of the

inspector was not of sufficient scope to comply with the requirements

of Article 6 para. 1 (Art. 6-1) of the Convention.

B.   Point at issue

34.  The issue to be determined is whether there has been a violation

of Article 6 para. 1 (Art. 6-1) of the Convention.

C.   As regards Article 6 para. 1 (Art. 6-1) of the Convention

35.  Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows:

     "In the determination of his civil rights and obligations ...,

     everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal established by law."

36.  The applicant considers that Article 6 para. 1 (Art. 6-1) applies

to the proceedings, and the Secretary of State's inspector did not

satisfy the criteria of independence and impartiality necessary to

comply with the provision as he is a salaried employee and an

individual case can be removed from him at any stage.  He also

considers that the review by the High Court, which is limited to points

of law, is not able to, and did not in this case, deal with the central

factual inferences which the inspector drew from the primary facts.

37.  The Government do not accept that the proceedings determined the

applicant's civil rights, but consider that even if they did, the

quasi-judicial proceedings before the inspector complied with Article 6

(Art. 6).  They further consider that the subsequent review by the High

Court was in any event of sufficient scope to comply with the

provision.

38.  The Commission recalls that the right of property is clearly a

"civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention, and the enforcement notice issued by the local authority

and the subsequent enforcement proceedings were directly concerned with

the way in which the applicant was entitled to use his land (cf. Eur.

Court H.R., Zander judgment of 25 November 1993, Series A no. 279-B,

para. 27, with further references).  Consequently, the proceedings in

the present case determined a "civil right".

39.  As to the role of the inspector in the proceedings, the

Commission notes that it is not called on to determine whether the

inspector conducted the proceedings fairly, as there has been no

suggestion from the applicant that the proceedings were unfair.  The

Commission sees no reason to dissent from the Government"s contention

that the proceedings before the inspector complied with the

requirements of fairness.

40.  The Commission must, however, consider whether the inspector in

determining the appeal constituted the "independent and impartial

tribunal established by law" which Article 6 (Art. 6) requires.

41.  The function of the inspector is to determine matters within his

competence on the basis of rules of law, following proceedings

conducted in a prescribed manner (see para. 32 above).  He therefore

comes within the concept of a "tribunal" within the substantive sense

of the expression as used in Article 6 para. 1 (Art. 6-1).  Moreover,

the tribunal was one "established by law", that is, by the Town and

Country Planning Act 1990.

42.  As to the independence and impartiality of the inspector, the

Commission notes that inspectors are chosen from salaried staff of the

Planning Inspectorate.  The Planning Inspectorate serves the Secretary

of State in the furtherance of the Secretary of State's policies.

Inspectors deciding planning appeals do so on behalf of the Secretary

of State, regardless of whether they are salaried employees or not.

Whilst the Secretary of State and his inspector are not parties to the

dispute as such, the Commission finds that the fact that the Secretary

of State's policies can be at issue in appeals means that the inspector

cannot have the independence necessary for Article 6 (Art. 6) of the

Convention.  Moreover, a case can be removed from an inspector's

jurisdiction even after he has been seised of it.

43.  Given that the proceedings before the inspector did not comply

with Article 6 (Art. 6) of the Convention because of his lack of

independence, the Commission must consider whether appeal to the High

Court was consistent with Article 6 para. 1 (Art. 6-1).  This will only

be the case if the appeal was conducted before "judicial bodies that

have full jurisdiction" (Eur. Court H.R., Albert and Le Compte judgment

of 10 February 1983, Series A no. 58, p. 16, para. 29; Zumtobel

judgment of 21 September 1993, Series A no. 268-A, para. 29).

enforcement notice in the present case was heard by an inspector

appointed by the Secretary of State.  The inspector was able to

consider all matters on that appeal, whether they related to facts or

to law, by virtue of Section 174 (2) TCPA.  The subsequent appeal to

the High Court, however, was limited to points of law, and the

Commission must decide whether, in the present case, that limitation

deprived the High Court of the "full jurisdiction" required by

Article 6 (Art. 6) of the Convention.

45.  The Commission notes that the applicant raised the matter of the

inspector's reasoning under ground (b) of Section 174 (2) TCPA in his

Notice of Appeal, but that he appears to have abandoned his challenge

before the High Court.  Whilst it is true that the judge referred to

some of the inspector's ground (b) findings in determining the appeal

against the ground (a) and (g) reasoning, he was nevertheless not

ultimately required to consider the ground (b) challenge, and so

formally did not have to review against the test of perversity or

irrationality the question whether the "matters" alleged in the

enforcement notice did, or did not, constitute a breach of planning

control.

46.    The Commission recalls that in the above-mentioned Zumtobel

case the European Court of Human Rights referred to the "respect which

must be accorded to decisions taken by administrative authorities on

grounds of expediency" (at para. 32).  The challenge to the inspector's

ground (a) reasoning concerned questions which indeed call for respect

on the "grounds of expediency" as they involved the application of the

panoply of policy matters such as development plans, and the facts that

the property was situated in a green belt and a Conservation Area.  The

ground (b) challenge, by contrast, would have raised matters of a more

factual nature in that they would have gone directly to questions of

whether the applicant had erected a building which fell within the

General Development Order, and so had the benefit of deemed planning

permission.  The submissions actually relied on before the High Court

were dealt with point by point.  In the absence of an argued ground (b)

challenge, it cannot be assumed that a review of whether or not the

inspector's findings of fact were perverse or irrational would have

been inadequate.  Moreover, given the carefully reasoned nature of the

Inspector's report, the absence of dispute as to primary facts as

distinct from factual inferences and the planning context of the case,

there is nothing to indicate that the limited review available was

inadequate in the particular circumstances of this case.  The ground

(g) and (h) challenges, which both expressly leave open a discretion

to the local authority (a determination of whether the steps required

exceed what was "necessary" under ground (g) or, under ground (h),

whether any periods specified fell short of what "should reasonably"

be allowed), also involved the consideration by the inspector of

matters closely linked to policy considerations.

     CONCLUSION

case there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention (para. 46).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)

                                                 (Or. English)

              CONCURRING OPINION OF Mr. N. BRATZA

     I share the view of the majority of the Commission that, on the

facts of the present case, the only challenge to the enforcement notice

which the applicant pursued in the High Court related to matters of

planning policy and that, consistently with the Court's reasoning in

the Zumtobel case, Article 6 does not in any event require that a court

should have the power to substitute its view for that of the

administrative authorities on matters of planning policy or

"expediency".  It is said that the reason why the applicant did not

pursue his appeal under ground (b) of Section 174(2) of the 1990 Act

may have been the fact that the court's powers of review were too

limited to justify pursuing the appeal.  However, as the Commission

correctly notes (para. 22) this is a matter of surmise only.  The

reason for withdrawing the ground might equally have been a recognition

on the part of the applicant that the primary facts found, and the

conclusion reached by the Inspector on the basis of those facts, were

so clearly correct as to be unassailable, however wide the review

powers of the High Court.

     However, I also find that there has been no violation of

Article 6 in the present case on the broader ground that the powers of

review of the High Court under Section 289 of the 1990 Act are

sufficiently wide to satisfy the requirement held by the Court to be

inherent in Article 6 that the judicial body determining the

applicant's civil rights and obligations should have "full

jurisdiction".

     It appears to me that the requirement that a court or tribunal

should have "full jurisdiction" cannot be mechanically applied with the

result that, in all circumstances and whatever the subject matter of

the dispute, the court or tribunal must have full power to substitute

its own findings of fact, and its own inferences from those facts, for

that of the administrative authority concerned.  Whether the power of

judicial review is sufficiently wide to satisfy the requirements of

Article 6 must in my view depend on a number of considerations,

including the subject matter of the dispute, the nature of the decision

of the administrative authorities which is in question, the procedure,

if any, which exists for review of the decision by a person or body

acting independently of the authority concerned and the scope of that

power of review.

     In my view the powers of review of the High Court, when combined

with the statutory arrangements under the 1990 Act for appealing

against an enforcement notice, satisfy the requirements of Article 6

para. 1.

     So far as the statutory arrangements are concerned, Section 174

of the 1990 Act provides that an appeal against an enforcement notice

served by a local authority may be made to the Secretary of State on

grounds, inter alia, that the matters alleged in the notice do not

constitute a breach of planning control.  Section 175(3) of the Act

provides that if an appellant or the local authority desires, the

Secretary of State shall give each of them the opportunity of appearing

before and being heard by a person appointed by the Secretary of State

("the Inspector") and power is conferred on the Inspector to determine

the appeal.

     In determining planning appeals Inspectors act in a quasi-

judicial capacity and in accordance with prescribed procedures, full

powers being conferred on both parties to appear, with or without legal

representation, adduce evidence, both written and oral, and make

submissions of both law and fact.  Further, the appeal results in a

reasoned decision letter.

     In paragraph 42 of the Report the Commission, while accepting

that the Inspector is a "tribunal" within the substantive sense of the

expression as used in Article 6 para. 1 and that such a tribunal is one

"established by law", concludes that an Inspector does not satisfy the

requirement of independence and impartiality:  it is correctly pointed

out that Inspectors are chosen from salaried staff of the Planning

Inspectorate, which serves the Secretary of State in the furtherance

of his policies, and that while the Secretary of State and his

Inspector are not parties to the dispute as such, the fact that those

policies can be in issue on appeals means that the Inspector cannot

have the independence necessary for Article 6 of the Convention.

     While this is true, there is equally nothing to suggest that, in

finding the primary facts and in drawing conclusions and inferences

from those facts, an Inspector acts anything other than independently,

in the sense that he is in no sense connected with the parties to the

dispute or subject to their influence or control;  his findings and

conclusions are based exclusively on the evidence and submissions

before him.

     An appeal is from an Inspector's decision to the High Court under

Section 289 of the Act "on a point of law".  As appears from the

Commission's Report, this does not mean that the Inspector's findings

of fact or the inferences drawn by him from those facts are free from

review by the Court.  The Court cannot substitute its own findings of

fact or its own inferences from those facts for those of the Inspector.

However, the Court can set aside a factual finding by an Inspector if

that finding is unsupported  by any evidence before him.  The Court can

also set aside inferences drawn by the Inspector from those facts if

those inferences are perverse or irrational in the sense that no

Inspector properly directing himself could reasonably have drawn such

inferences.

     Applying these principles to the circumstances of the present

case, the High Court could have quashed the decision of the Inspector

if it could have been shown that there was no evidence before him on

which he could have found that the building did not, as originally

built, incorporate the internal drainage necessary for a veal calf

unit; that none of the alleged doorway openings reached ground level

and that one was almost waist high above outside ground level;  that

other features included the extensive use of Georgian style windows and

other windows made for domestic use;  that domestic style eaves and

gable barge boarding had been used; and that the building had a

residential looking "porch".  Equally the High Court could have quashed

the decision of the Inspector if it had been shown that no Inspector

properly directing himself could reasonably have concluded on the basis

of these primary facts that the building was not, as originally built,

designed for the purposes of agriculture.

     In my view this power of review of the High Court, combined with

the statutory procedure for appealing against an enforcement notice,

is sufficient to meet the requirement of "full jurisdiction" inherent

in Article 6 para. 1 of the Convention.

                                                 (Or. English)

      DISSENTING OPINION OF MM. TRECHSEL, ROZAKIS, GEUS,

                   REFFI AND CABRAL BARRETO

     We disagree with the finding of the majority that this case

discloses no violation of Article 6 of the Convention.

     In the present case, a key element of the applicant's appeal to

the Secretary of State and subsequently of his notice of appeal to the

High Court was that the building he had erected was indeed a barn

designed and intended for agricultural use such that it had the

benefit, without further authority, of deemed planning permission under

the General Development Order.  Whilst it is true that he withdrew his

appeal against the inspector's ground (b) reasoning at the hearing

before the High Court, he pursued the appeal against the reasoning

under grounds (a) and (g) and the High Court judge, in dealing with the

challenge to the inspector's conclusions under grounds (a) and (g),

affirmed that the inspector's ground (b) reasoning was relevant to his

own conclusions.  We consider that the judge's comments to the effect

that he was not prepared to substitute his opinion for that of the

inspector amount to a denial of jurisdiction to re-consider either the

primary facts of the case or the question whether the building fell to

be regarded as an agricultural building or not.  We feel that the

applicant's representatives may well have decided not to pursue the

contention that the applicant had deemed planning permission because

they were unable to invite the court to substitute its own findings for

the inspector's findings of fact, and could not maintain an argument

that those findings were perverse or irrational: it is unrealistic to

expect an advocate to raise arguments which he knows a court will not

entertain.

     In the Zumtobel case the European Court of Human Rights referred

to the "respect which must be accorded to decisions taken by

administrative authorities on grounds of expediency" (at para. 32).

Whilst questions of expediency play a large role in matters relating

to, for example, the public interest involved if a particular

development is permitted, the present case concerns, at least in part,

the fundamental factual issue of whether the building erected by the

applicant was, or was not, designed for the purposes of agriculture and

so had deemed planning permission.  This factual issue was in dispute

and in the circumstances of this case the High Court judge was not able

to provide a "determination" of it (cf. the Albert and Le Compte

judgment, p. 16, para. 29).  For us, this deprived the applicant of

access to a "tribunal" to which Article 6 para. 1 of the Convention

entitled him.

                          APPENDIX I

                  HISTORY OF THE PROCEEDINGS

Date                     Item

_________________________________________________________________

29 October 1991          Introduction of application

9 December 1991         Registration of application

Examination of admissibility

7 July 1992             Commission's decision to communicate the

                         case to the respondent Government and to

                         invite the parties to submit observations

                         on admissibility and merits

4 November 1992         Government's observations

29 December 1993         Applicant's observations in reply

29 July 1993             Government's further observations

2 April 1993            Commission's decision to hold a hearing

14 October 1993          Hearing on admissibility and merits, the

                         parties being represented as follows :

                         Government :   Mr. I. Christie, Agent

                                        Mr. D. Pannick Q.C.

                                        Mr. D. Anderson, Counsel

                                        Ms. V. Harrison, Adviser

                         Applicant :    Mr. R. Drabble)

                                        Mr. E. Owen   ) Counsel

                                        Mr. R. M. Napier, Solicitor

14 October 1993          Commission's decision to declare

                         application in part admissible and in part

                         inadmissible

Examination of the merits

5 March 1994            Commission's consideration of state of

                         proceedings

28 June 1994            Commission's deliberations on the merits,

                         final vote and consideration of text of

                         the Report and adoption of Report