Lexploria

Application No. 12742/87

PINE VALLEY DEVELOPMENTS LTD. AND OTHERS

against

IRELAND

REPORT OF THE COMMISSION

(adopted on 6 June 1990)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 18) ..................................... 1

A. The application

(paras. 2 - 7) ............................... 1

B. The proceedings

(paras. 8 - 13) .............................. 1

C. The present Report

(paras. 14 - 18) ............................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19 - 47) .................................... 4

A. The particular circumstances of the case

(paras. 19 - 41) ............................. 4

B. Relevant domestic law and practice

(paras. 42 - 47) ............................. 12

III. OPINION OF THE COMMISSION

(paras. 48 - 108) .................................... 16

A. Points at issue

(para. 48) ................................... 16

B. Article 1 of Protocol No. 1

(paras. 49 - 89) ............................. 16

C. Article 14 of the Convention in conjunction

with Article 1 of the Protocol

(paras. 90 - 101) ............................ 23

D. Article 13

(paras. 102 - 107) ........................... 25

E. Recapitulation

(para. 108) ................................. 25

DISSENTING OPINION OF MR. LOUCAIDES,

joined by Mr. Vandenberghe, Mrs. Thune and Mr. Rozakis ....... 27

PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION

OF MRS. LIDDY ................................................ 29

APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 32

APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 33

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 first applicant is Pine Valley Developments Ltd., a

company registered in Dublin whose principal business was the purchase

and the development of land. The company is still in existence but is

not trading. It has no assets.

3. The second applicant is Healy Holdings Ltd., the parent

company of the first applicant also registered in Dublin, whose

principal business was also the purchase and development of land. The

company has been in receivership since 14 October 1985. The

shareholding in Pine Valley Developments Ltd. was held by Healy

Holdings Ltd. and by the third applicant in trust for Healy Holdings

Ltd.

4. The third applicant, Mr. Daniel Healy, is the managing

director and sole beneficial shareholder of both the first and second

applicants. He is an Irish national and lives, at present, in England.

5. The applicants are represented, in the proceedings before the

Commission, by Mr. Philip O'Sullivan S.C., of counsel, and Messrs.

McKeever & Son, Solicitors, Dublin.

6. The application is directed against Ireland whose Government

are represented by their Agent, Mr. P. E. Smyth, Department of Foreign

Affairs.

7. The case concerns an alleged interference with the applicants'

property rights and the absence of compensation or other remedy under

Irish law for such interference. It raises issues under Articles 13

and 14 of the Convention and Article 1 of Protocol No. 1.

B. The proceedings

8. The application was introduced before the Commission on

6 January 1987 and registered on 23 February 1987. On 8 October 1987,

the Commission decided, in accordance with Rule 42 (2)(b) of its

Rules of Procedure, to give notice of the application to the

respondent Government and to invite them to present, before 15 January

1988, their observations in writing on the admissibility and merits of

the application insofar as it raised issues under Article 1 of Protocol

No. 1 and Article 14 of the Convention in conjunction with Article 1

of Protocol No. 1. Following an extension of the time limit, the

respondent Government submitted their observations on 15 March 1988.

The applicants' observations in reply were submitted on 9 May 1988.

The Commission next considered the application on

15 December 1988 and decided to invite the parties to a hearing on the

admissibility and merits of the case insofar as it raised issues under

Article 1 of Protocol No. 1 and Article 14 of the Convention in

conjunction with Article 1 of Protocol No. 1.

9. At the hearing, which was held in Strasbourg on 3 May 1989, the

applicants were represented by Mr. P. O'Sullivan, S.C., and Mr. G. Walsh,

Solicitor, of Messrs. McKeever and Son, and Ms. H. O'Sullivan, Adviser.

10. The Government were represented by Mr. P. E. Smyth, Agent,

Mr. H. J. O'Flaherty, S. C., and Mr. J. O'Reilly, Counsel,

Mr. J. F. Gormley, Office of the Attorney General, and Mr. P. Fenton,

Department of the Environment.

11. Following the hearing, the Commission declared the application

admissible and invited the parties to submit before 29 September 1989

any further evidence or additional observations that they wished to put

before the Commission. After several extensions of the time

limit, the Government's supplementary observations were submitted on

13 November 1989. The applicants' reply to these observations was

submitted on 12 January 1990. The Government submitted a response to

these observations on 9 February 1990.

12. In their supplementary observations the Government requested

the Commission to reject the application under Article 29 of the

Convention. The Commission considered this request on 15 March 1990

and found no basis for the application of Article 29 of the Convention.

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

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission

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

effected.

C. The present Report

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

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

J. A. FROWEIN, Acting President

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. C. L. ROZAKIS

Mrs.J. LIDDY

Mr. L. LOUCAIDES

15. The text of this Report was adopted by the Commission on

6 June 1990 and is now transmitted to the Committee of Ministers of the

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

Convention.

16. 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.

17. A schedule setting out the History of the Proceedings

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

decision on the admissibility of the application forms Appendix II.

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

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

the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the application

19. On 10 March 1977 the Minister for Local Government granted

outline planning permission for industrial warehouse and office

development in respect of a site comprising 21½ acres of land at

Clondalkin, County Dublin to its then owner, Mr. P. Thornton. This

decision was granted on appeal against a decision of the planning

authority (Dublin County Council) of 26 April 1976 refusing an

application for full planning permission on the grounds inter alia

that the site was located in an area zoned for the further development

of agriculture so as to preserve a green belt. A record of the

permission was made in the planning register.

20. On 15 November 1978 the first applicant (Pine Valley

Developments Ltd.) agreed to purchase the lands for £550,000 in

reliance upon the grant of outline planning permission. Such outline

planning permission establishes the right of the landowner in

principle to develop land subject only to subsequent approval of

detailed plans. In the event that such subsequent approval is

refused, Section 55 of the 1963 Planning Act provides for a general

right to compensation for any reduction in value of the interest of

the claimant in the land.

21. On 16 July 1980 the first applicant applied to Dublin County

Council for detailed planning approval in reliance on the outline

permission already granted. On 15 September 1980 the Council refused

to grant the planning approval sought.

First Pine Valley Case

----------------------

22. On the refusal by the Council to grant planning approval, the

first applicant sought, and was granted on 8 December 1980, a

conditional Order of Mandamus, directing Dublin County Council to

grant planning approval. The Order was made absolute by the High

Court in a decision dated 27 May 1981.

23. The first applicant then sold the property to the second

applicant (the parent company - Healy Holdings Limited) on

17 July 1981 for £550,000.

24. On an appeal by Dublin County Council against the High Court's

decision, the Supreme Court held, on 5 February 1982, that the grant

of outline planning permission by the Minister for Local Government

was ultra vires the Minister and was therefore a nullity. The Court

found that the Minister could only make a decision which contravened

the development plan (as in the present case) where the planning

authority had sought his permission to take such a decision. The

Minister possessed no power under the relevant legislation (Section 26

of the Local Government (Planning and Development) Act 1963) to make a

decision which contravened the development plan following an appeal

against the refusal of the planning authority.

25. The consequence of this decision was that the lands could not

be developed, with the result that the market value of the lands was

substantially reduced. The applicants alleged that the property fell

in value from £550,000 to £50,000.

Section 6 of the Local Government (Planning and

-----------------------------------------------

Development) Act 1982

---------------------

26. In order to validate planning permissions and approvals the

validity of which came into question as a result of the above decision

of the Supreme Court, the Local Government (Planning and Development)

Act 1982 was enacted and entered into force on 28 July 1982.

27. Section 6 of the 1982 Act provided as follows:

"1) A permission or approval granted on appeal ... prior to

the 15th day of March 1977 shall not be, and shall not be

regarded as ever having been, invalid by reason only of the

fact that the development concerned contravened, or would

contravene, materially the development plan relating to the

area of the planning authority to whose decision the appeal

related.

2) If, because of any or all of its provisions, subsection

(1) of this section would, but for this subsection, conflict

with a constitutional right of any person, the provisions of

that subsection shall be subject to such limitation as is

necessary to secure that they do not so conflict but shall

be otherwise of full force and effect."

28. The date of 15 March 1977 was the establishment date of

An Bord Pleanála (Planning Board) which assumed the appeal functions

formerly entrusted to the Minister for Local Government (Section 2

of Local Government (Planning and Development) Act 1976).

29. Section 2 of the 1982 Act provided that permission granted on

or after 1 November 1976, and no later than 31 October 1982, would

cease on 31 October 1987, or seven years after the granting of

permission, whichever was earlier. In the present case the permission

would have ceased on 10 March 1984.

30. In the course of the debate on the 1982 Act before Seanad

Éireann (Upper House of Parliament) the Minister of State at the

Department of the Environment was asked the following question:

"I understand that certain planning permissions were

declared to be null and void by the Supreme Court. I agree

the law has to be put right, but who is going to declare

under subsection (2) whether a person's constitutional

rights are going to be interfered with? Does it mean

another trip to the Supreme Court? What is the position?

The Minister might tell us exactly what is in his mind."

The Minister replied as follows:

"It would be agreed by the court. Subsection (2) has been

included by the parliamentary draftsman, with the agreement

of the Attorney General, so as to preserve the rights of parties

to any proceedings now before the courts and to assure that no court

is deprived of jurisdiction regarding an issue raised in such

proceedings. This subsection is also designed to meet the case

of any unconstitutional interference with a property right."

(Official Report of the Parliamentary Debates of Seanad

Éireann for 22 July 1982, Columns 1411 - 1435).

31. One other case was pending before the courts at the time of

the enactment of Section 6 of the 1982 Act concerning a planning

permission which had been granted on appeal by the Minister for Local

Government. However the Supreme Court later held that the case fell

outside the scope of the Supreme Court's decision in the second Pine

Valley case (see below) and was thus unaffected by Section 6 of the

1982 Act (unreported decision of the Supreme Court of 19 February 1983).

32. Following the coming into force of this legislation Pine Valley

Developments Ltd. wrote to Dublin County Council on 4 August 1982

seeking planning approval on the basis of the outline permission

granted on 10 March 1977. Dublin County Council refused approval on

10 December 1982 inter alia on the grounds that the Supreme Court had

held in the Pine Valley case that the purported outline

permission was not a valid permission. The applicants did not appeal

against this decision to the Planning Board (An Bord Pleanála). They

considered that an appeal would have been to no avail since the

Board had to confine itself to matters of proper planning and

development and could not give an authoritative interpretation of

Section 6 of the 1982 Act.

33. However, on 27 April 1983 the applicants' architect (and

nominal shareholder with Mr. Healy in Healy Holdings Ltd.) wrote to

An Bord Pleanála asserting that the first applicant was excluded from

the benefit of Section 6 (1) of the 1982 Act and asking that the

applicants' position be reconsidered in the light of "the

injustice of the situation". The Board replied on 2 May 1983,

regretting that it could be of no assistance. Finally, on 7 September

1984 the applicants' solicitors wrote again to the Board requesting it

to deal with the outstanding appeal which had originally been dealt

with by the Minister in March 1977 and subsequently found invalid by the

courts. The Board replied on 23 November 1984 that "the appeal which

was determined by the Minister for Local Government on 10 March 1977

does not remain to be determined by the Board". On being asked by the

solicitors to indicate the reasons for this decision, the Board

replied on 8 January 1985 as follows:

"I am directed by the Board to inform you that the legal advice

which we have taken in this matter is confidential to them.

The Board understood that your original query was raised in

order that you might be in a position to inform the Court

as to whether or not the Board considered that the Appeal

remained to be determined by them. As the Board is not a

party to the Proceedings, it does not feel it can assist in

the matter any further than by stating the position which it

has adopted. If it is intended to query this position you

will know what steps to take."

Second Pine Valley Case

-----------------------

34. On 11 March 1983 the first applicant brought proceedings

against the Minister of the Environment seeking damages for breach of

statutory duty, for negligent misrepresentation and for negligence.

The statement of claim was subsequently amended on 25 January 1985 to

include the second and third applicants as plaintiffs. Subsequently

the parties agreed to the following points of law to be determined:

1) Whether an action in damages for breach of statutory duty

lay against the Minister of the Environment for granting on legal

advice outline planning permission to Mr. Thornton;

2) Whether an action in damages for negligence lay against

the Minister of the Environment;

3) Whether an action in damages for negligent

misrepresentation lay against the Minister of the Environment;

4) Whether in the circumstances pleaded the State has failed

to vindicate the property rights of the plaintiff and if so,

whether an action for damages lay against the State;

5) Whether in the circumstances pleaded the State has in its

laws respected, and as far as practicable by its laws, defended

and vindicated the property rights of the plaintiff and if so,

whether an action in damages lies against the State.

35. On 28 June 1985 the High Court found that the applicant had no

cause of action. On 22 July 1985 the first and second applicants

entered into an agreement with the third applicant (Mr. Healy)

acknowledging that any benefit resulting from the proceedings would

accrue to him free of any claim by the two companies. On 30 July 1986

the Supreme Court unanimously dismissed an appeal against the High

Court decision ([1987] ILRM, pp. 753-768).

Breach of statutory duty

------------------------

36. Mr. Justice Finlay C.J. (with whose judgment Mr. Justice

Griffin agreed and Mr. Justice Hederman concurred) first rejected the

applicants' claim based on breach of statutory duty (ibid., pp. 757-758):

"... What the plaintiffs do contend, however, is that the

exercise by the first-named defendant of his powers under

the Act of 1963 in the form of the decision which he made to

grant outline planning permission which materially

contravened the development plan, was such a gross abuse of

the power which he was purporting to exercise that it could

not reasonably be an exercise of that power.

It was, therefore, submitted that it constituted a

breach of a duty owed to the plaintiffs as persons who might

become and were in fact affected by the granting of that

outline permission. The duty was alleged to be to exercise

his statutory power of decision in a reasonable fashion and,

it was submitted, a breach of it was actionable in damages.

I am satisfied that this submission also fails.

The Minister in making his purported decision to

grant an outline planning permission was exercising a

decision-making power vested in him for the discharge of a

public purpose or duty. The statutory duty thus arising

must, however, in law, be clearly distinguished from duties

imposed by statute on persons or bodies for the specific

protection of the rights of individuals which are deemed to

be absolute and breach of which may lead to an action for

damages.

The decision-making power or duty purporting to have

been exercised on this occasion, in my view, falls, with

regard to the question of damages arising from its

performance into a quite different category.

I would adopt with approval the clear summary

contained in the 5th Edition of H.W.R. Wade

Administrative Law at page 673 when the learned author

states as follows:

'The present position seems to be that

administrative action which is ultra vires

but not actionable merely as a breach of duty will

found an action for damages in any of the

following situations.

1. If it involves the commission of a recognised

tort, such as trespass, false imprisonment or

negligence.

2. If it is actuated by malice, e.g. personal

spite or a desire to injure for improper reasons.

3. If the authority knows that it does not possess

the power which it purports to exercise.'

I am satisfied that there would not be liability

for damages arising under any other heading.

It is, of course, conceivable that proof of what has

been submitted in this appeal as a gross abuse of the

exercise of a statutory power of decision, or proof of a

wholly unreasonable exercise of that power, would be taken

by a court to be evidence that the authority knew or must

have known that it did not possess the power which it

purported to exercise.

I am quite satisfied, however, that the exercise

by the defendant of this power in 1977, in the manner in

which he did, and having regard to the legal advice which

he sought and obtained prior to doing so, could not possibly

constitute such a gross abuse of power or wholly

unreasonable exercise of power as to lead to an inference

that he was aware that he was exercising a power which he

did not possess. The only evidence led in this case quite

clearly indicated the contrary, and that the Minister was of

the belief that he was exercising a power which he

possessed.

Not only am I satisfied that this is the true legal

position with regard to a person exercising a power of

decision under a public statutory duty, but it is clear that

there are and have always been weighty considerations of the

public interest that make it desirable that the law should

be so. Were it not, then there would be an inevitable

paralysis of the capacity for decisive action in the

administration of public affairs."

Negligence and negligent misrepresentation

------------------------------------------

37. In rejecting the applicant's claim based on negligence and

negligent misrepresentation, Mr. Justice Finlay C.J. stated as

follows (ibid., p. 756):

"The learned trial judge dealing with the evidence before

him by the principal legal adviser to the first-named

defendant, stated as follows:

'[The] evidence which I accept, was that all planning

appeals to the Minister were scrutinised by the legal

section of the Department before submission to the

Minister and that when the Local Government (Planning and

Development) Act 1963 became law the legal section of the

Department had advised the Planning Section that the

Minister had power on appeal to allow a development which

materially contravened the Plan. The legal adviser had

not appreciated that 26(3) of the Act imposed any

conditions precedent to a grant of permission by the Minister

in those cases and over the years permission had been granted

for many developments of that kind.'

I am satisfied that these inferences of findings of fact made

by the learned trial judge are supported by the evidence

given and therefore can not be disturbed or interfered with

by this Court.

Having regard to that finding, I am quite satisfied that the

learned trial judge was right in reaching the conclusion

which he did that the first-named defendant could not be

said to have been guilty of negligent misrepresentation.

If a Minister of State, granted as a persona designata

a specific duty and function to make decisions under a

statutory code (as occurs in this case), exercises his

discretion bona fide, having obtained and followed

the legal advice of the permanent legal advisers attached

to his Department, I cannot see how he could be said to have

been negligent if the law eventually proves to be otherwise

than they have advised him and if by reason of that he makes

an order which is invalid or ultra vires. The

Plaintiffs on this appeal expressly waived any question of an

allegation of malice or improper motives against the first-

named Defendant, nor indeed was any allegation of malice or

impropriety made against him in the pleadings. I am, therefore,

satisfied that insofar as the Plaintiffs have appealed against

the learned trial Judge's findings, that an action in damages

for negligence or for negligent misrepresentation does not and

cannot lie, the appeal must fail."

Damages for breach of constitutional right of property

------------------------------------------------------

38. As regards the claim against the State for damages based upon

a breach of the applicant's constitutional right of property,

Mr. Justice Finlay C.J. added as follows (ibid., pp. 758-760):

"With regard to this submission the first enquiry must, it

seems to me, be as to whether there has been an unjust attack

on the plaintiffs' property rights or whether an injustice

has been done to them.

What the Minister was doing in making his decision in 1977

to grant outline planning permission to the then owner of

these lands was not intended as any form of delimitation

or invasion of the rights of the owner of those lands but

was rather intended as an enlargement and enhancement of

those rights.

The purchase of land for development purposes is manifestly

a major example of a speculative or risky commercial

enterprise. Changes in market values or economic forces,

changes in decisions of planning authorities, the rescission

of them, and many other factors, indeed, may make the land

more or less valuable in the hands of its purchasers.

I am prepared to accept that prima facie in this

instance the fact that the Minister's decision was ultimately

found by this Court to have been a nullity, probably

contributed towards a diminution in the value of the land

in the Plaintiffs' hands. That fact, itself, however,

does not, in my view, necessarily mean that an injustice

was done to the Plaintiffs and I am certain that that does

not constitute an unjust attack on the Plaintiffs' property

rights.

The obligation of the State in Article 40.3.1° and Article

40.3.2° is in the first instance, as far as practicable by

its law to defend and vindicate the personal rights of the

citizen and, in the second instance, to protect as best it

may from unjust attack, and in the case of injustice done,

vindicate the property rights of every citizen. In its

decision in the case of Moynihan v. Greensmyth [1977]

IR 55, this Court in its judgment delivered by O'Higgins CJ,

stated as follows:

'It is noted that the guarantee of protection given by

Article 40.3.2° of the Constitution is qualified by the

words as best may be. This implies circumstances

in which the State may have to balance its protection

of the right as against other obligations arising

from regard for the common good.'

I am satisfied that it would be reasonable to regard as a

requirement of the common good an immunity to persons in whom

are vested statutory powers of decision from claims for

compensation where they act without negligence and bona fide.

Such an immunity would contribute to the efficient and

decisive exercise of such statutory powers and would, it

seems to me, tend to avoid indecisiveness and delay,

which might otherwise be involved.

I am, therefore, satisfied that there cannot be, on the facts

of this case, any question of there being a clearcut obligation

imposed on the State to provide compensation for the Plaintiffs

in the circumstances which have arisen. I am, therefore,

satisfied that the submissions made with regard to a claim for

damages for breach of constitutional rights must also fail. It

is not necessary for me to decide, and I express no opinion, on

the question as to whether an action does lie for failure on

the part of the Oireachtas to legislate in protection of

personal rights, as distinct from the action to set aside or

invalidate legislation which fails adequately to protect or

vindicate them."

39. On the question of whether the applicants were excluded by

Section 6(2) Mr. Justice Finlay C.J. stated that the 1982 Act

retrospectively validated certain planning decisions but contained a

saver "for cases involving constitutional rights of other persons,

which would appear to exclude the plaintiffs from the benefit of such

retrospective validation" (ibid., p. 758).

40. Mr. Justice Henchy (Griffin J agreeing) expressed the opinion

that the applicants might have a remedy for breach of covenant or for

unjust enrichment. He also considered that Section 6(2) excluded the

appicants and that no issue of unfair discrimination arose (ibid., pp.

763-764):

"It is to be assumed that there was a conveyance by deed of

the lands in question to Pine Valley. This conveyance must

have contained, either expressly, or by implication under

s. 7 of the Conveyancing Act, 1881, a covenant for title on

the part of the vendor. When, as a result of the decision of

this Court that the Minister's planning permission was a

nullity, there would have been a breach of the vendor's

covenant for title, which would have given Pine Valley a

cause of action for damages against the vendor for breach of

that covenant. But even if, for one reason or another, such

a claim for breach of covenant did not lie, another form of

proceedings could have been used by Pine Valley to prevent

the unjust enrichment which may be said to have accrued to

the vendor through getting money from Pine Valley for a

planning permission which turned out to be worthless. So

much of the purchase price as was attributable to the

planning permission was paid under a mistake of law, but in

my opinion it would be recoverable no less than if it had

been paid under a mistake of fact: see Goff and Jones,

The Law of Restitution, 2nd edition (1978), p. 91. Pine

Valley have not shown that they could not recover their loss

in that way. It may therefore be said that they have failed

to prove that an injustice has been done to them for the

purposes of Article 40.3.2°.

...

S. 6 of that Act had the effect of giving

retrospective validity to planning permissions such as this

granted on appeal prior to 15 March 1977, save where such

retrospective validation would conflict with a

constitutional right of any person. This meant that Pine

Valley were excluded from the benefit of the section, for

they had exercised their constitutional right to litigate

the validity of the planning permission in the Courts. That

exclusion has been attacked by counsel for Pine Valley as

being unfairly discriminatory as far as they are concerned,

but in my view, while a discrimination has resulted, the

primary and overriding purpose of the section was to avoid

an unconstitutional invasion of the judicial domain by

attempting to give validity to any planning permission which

the Courts may have held to be lacking in validity. It

would follow that no injustice has been done to Pine Valley

by s.6 of the 1982 Act."

41. Mr. Justice Lardner considered that the exclusion of the

applicants by Section 6 constituted neither an unjust attack on their

property rights nor unlawful discrimination (ibid., p. 767):

"The particular controversy between the parties in

Pine Valley Developments Ltd. v. Dublin County Council was

tried and decided by this Court in favour of the Defendants

in February 1982. No doubt it was apprehended that s. 6(1)

of the Local Government (Planning and Development) Amendment

Act 1982 might operate to reverse retrospectively this

Court's decision and that this might constitute an

unwarrantable interference by the legislature in a decision

of the courts. It seems probable that it was in these

circumstances that s. 6(2) was enacted with a view to

avoiding such interference. And this subsection has been

accepted by counsel for both sides in the present case as

excluding the appellants from the benefit of s. 6(1).

It is in respect of this situation or set of facts

that the appellants contend that to exclude them from the

benefit of s. 6(1) constitutes (a) an unjust attack on their

property rights or an injustice done which affects their

property rights and (b) discriminates unfairly as between

them and other persons who had received permissions or

approvals of the Minister on appeal under Part IV of the

1963 Act and who were given the benefit of s. 6(1). In

regard to the first contention it seems to me that s. 6(2)

was included by the Oireachtas for the purpose of

respecting and not interfering with the determination by the

courts of the justiciable controversy which constituted the

proceedings in Pine Valley Developments Limited v. Dublin

County Council and of respecting the constitutional rights of

the parties, both plaintiffs and defendants in that action,

to have their controversy determined by the courts rather

than by the Oireachtas. It may be that there is to some

extent a conflict here between the right of the parties to

have their controversy judicially determined by the courts

and the present appellants' property interest. That fact in

itself, however, does not in my view, necessarily mean that

an injustice was done to the appellants and I am satisfied

that it does not constitute an unjust attack on the

appellants' property rights or an unlawful discrimination

against them."

B. Relevant domestic law and practice

42. Articles 40.1, 40.3 and 43 of the Constitution of Ireland

provide as follows:

Article 40.

"1. All citizens shall, as human persons, be held

equal before the law.

This shall not be held to mean that the State

shall not in its enactments have due regard to

differences of capacity, physical and moral,

and of social function."

...

"3. 1° The State guarantees in its laws to respect,

and, as far as practicable, by its law to defend

and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws

protect as best it may from unjust attack and,

in the case of injustice done, vindicate the

life, person, good name, and property rights of

every citizen." ...

Article 43

"1. 1° The State acknowledges that man, in virtue of his

rational being, has the natural right, antecedent

to positive law, to the private ownership of

external goods.

2° The State accordingly guarantees to pass no law

attempting to abolish the right of private

ownership or the general right to transfer,

bequeath, and inherit property.

2. 1° The State recognises, however, that the

exercise of the rights mentioned in the foregoing

provisions of this Article ought, in civil society

to be regulated by the principles of social justice.

2° The State, accordingly, may as occasion requires

delimit by law the exercise of the said rights with

a view to reconciling their exercise with the

exigencies of the common good."

Relevant provisions of the Local Government

-------------------------------------------

(Planning and Development) Act 1963

-----------------------------------

43. The relevant provisions of the 1963 Act provide as follows:

Section 26 (1)

"Where,

(a) application is made to a planning authority

in accordance with permission regulations for

permission for the development of land or for an

approval required by such regulations, and

(b) any requirements relating to the application

of or made under such regulations are complied with,

the authority may decide to grant the permission or approval

subject to or without conditions or to refuse it; and in

dealing with any such application the planning authority

shall be restricted to considering the proper planning and

development of the area of the authority (including the

preservation and improvement of the amenities thereof),

regard being had to the provisions of the development plan,

the provisions of any special amenity area order relating to

the said area and the matters referred to in subsection (2)

of this section."

Section 26 (3)

"(a) A planning authority shall not, in a case in

which the development concerned would contravene materially

the development plan or any special amenity area order

relating to their area, decide to grant a permission under

this section save with the consent of the Minister.

(b) Where an application is made to the Minister for

a consent under this subsection, any person may furnish to

the Minister in writing his objections to the grant of the

consent, and the Minister shall, before granting the

consent, consider any such objections which he receives

within twenty-one days after the receipt of the application."

This provision was subsequently amended by Section 39 (d)

of the Local Government (Planning and Development) Act 1976.

Section 55 (1) (compensation)

"If, on a claim made to the planning authority, it is shown

that, as a result of a decision under Part IV of this Act

involving a refusal of permission to develop land or a grant

of such permission subject to conditions (other than any

such condition as is referred to in paragraph (e), paragraph

(g) or paragraph (h) of subsection (2) of section 26 of this

Act) the value of an interest of any person existing in the

land to which the decision relates at the time of the

decision is reduced, such person shall, subject to the

provisions of this Part of this Act, be entitled to be paid

by the planning authority by way of compensation the amount

of such reduction in value and, in the case of the occupier

of the land, the damage (if any) to his trade, business or

profession carried on on the land."

Section 29 (1) (purchase notice)

"Where, in a case determined on an appeal under this Part of

this Act, permission to develop any land has been refused or

has been granted subject to conditions, then, if the owner

of the land claims -

(a) that the land has become incapable of

reasonably beneficial use in its existing

state, and

(b) that the land cannot be rendered capable of

reasonably beneficial use by the carrying out

of any other development for which permission

has been granted under this Part of this Act,

or for which the planning authority have

undertaken to grant such permission, and

(c) in a case where permission to develop the

land was granted as aforesaid subject to

conditions, that the land cannot be rendered

capable of reasonably beneficial use by the

carrying out of the permitted development

in accordance with those conditions,

he may, at any time within the period of six months after

the decision (or such longer period as the Ministry may

allow), serve on the planning authority a notice (hereafter

in this section referred to as a purchase notice) requiring

the planning authority to purchase his interest in the land

in accordance with the provisions of this section.

Assessment of value of property following a purchase notice

------------------------------------------------------------

44. The relevant rule for assessing the value of land which is the

subject of a purchase notice is Rule 2 of the Rules set out in Section 2

of the Acquisition of Land (Assessment of Compensation) Act 1919. It

provides as follows:

"The value of land shall, subject as hereinafter

provided, be taken to be the amount which the land if

sold in the open market by a willing seller might be

expected to realise; provided always that the

Arbitrator shall be entitled to consider all returns

and assessments of capital value for taxation made or

acquiesced in by the claimant;".

Outline permission, permission and approval

-------------------------------------------

45. The Local Government (Planning and Development) Act 1963 and

the 1977 Regulations made under Section 25 of the 1963 Act provide for

an outline permission for development which is granted subject to the

subsequent approval of the planning authority (or on appeal) of

detailed plans of the development. A grant of outline permission

amounts to a favourable decision as to the principle of a proposed

development and sets the parameters within which the planning

authority must consider an application for a subsequent approval.

The planning authority may not re-open the question of whether the

development is acceptable in principle (see judgment of High Court

in the first Pine Valley case, unreported judgment of 27 May 1981).

An outline permission does not enable the applicant to commence

development until the necessary approval has been granted. By contrast,

a permission is complete in itself and requires no subsequent

approval to authorise the commencement of the work (see Planning

and Development law, Mr. Justice E. M. Walsh, pp. 32 and 33, (1984)).

46. Section 8 of the 1963 Act provides that the planning

authority shall keep a register for inter alia the recording of

planning permissions. Section 28 (5) of the 1963 Act, where relevant,

provides that "where permission to develop land or for the retention

of a structure is granted under this Part of the Act, then, ... the

grant of permission shall enure for the benefit of the land or

structure and of all persons for the time being interested therein ...".

Independence of the judicial function

-------------------------------------

47. It is established by the Supreme Court in the case of Buckley

and others (Sinn Fein) v. Attorney General [1950] I.R.67 that the

legislature cannot intervene in respect of cases pending before the

courts. On the other hand it appears that the legislature may validly

reverse the decision of the courts with retrospective effect once

the proceedings are terminated without infringing the principle of

judicial independence (see e.g. Garda Siochána Act 1977 reversing the

Supreme Court decision in Garvey and others v. Ireland [1981] I.R.75).

III. OPINION OF THE COMMISSION

A. Points at issue

48. The following are the points at issue in the case:

Article 1 of Protocol No. 1 (P1-1)

- Does the respondent State's alleged failure to validate

retrospectively the applicants' outline planning permission or to

provide compensation or other remedy for the reduction in the value of

their property in consequence of the Supreme Court decision in the

first Pine Valley case constitute a violation of Article 1 of Protocol

No. 1 (P1-1) to the Convention?

Article 14 of the Convention in conjunction

with Article 1 of Protocol No. 1 (Art. 14+P1-1)

- Were the applicants the victims of discrimination in the

enjoyment of their rights under Article 1 of Protocol No. 1 (P1-1)

contrary to Article 14 (Art. 14) of the Convention?

Article 13 (Art. 13) of the Convention

- Did the applicants have an effective remedy under Irish law

in respect of their complaints as required by Article 13 (Art. 13) of the

Convention?

B. Article 1 of Protocol No. 1 (P1-1)

49. The applicants complain of a violation of their property

rights in breach of Article 1 of Protocol No. 1 (P1-1) to the Convention

("the Protocol"). This provision 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."

1. Interference with the first applicant's rights

under Article 1 of the Protocol (P1-1)

50. The Commission observes that the first applicant sold the

property to the second applicant on 17 July 1981 for the equivalent of

the purchase price (see para. 23 above). It follows that the losses

in the present case in the form of reduction of value and loss of

commercial potential have been borne by the second and third

applicants. The Commission therefore finds that there has been no

interference with the property rights of the first applicant in this

case.

Conclusion

51. The Commission concludes, by a unanimous vote, that there has

been no violation of the first applicant's rights under Article 1 of

the Protocol (P1-1).

2. Interference with the second and third applicants' rights

under Article 1 of the Protocol (P1-1)

52. The applicants point out that as a result of the decision of

the Supreme Court finding that the grant of outline planning

permission was invalid, the value of their property was substantially

reduced since they could no longer develop it. They contend that

having relied on the validity of the outline planning permission when

the property was purchased, they ought to have received compensation

for the subsequent reduction in value or to have been included in the

retrospective validation of planning permission provided for by

Section 6 (1) of the Local Government (Planning and Development) Act

1982 ("the 1982 Act").

53. They submit that the lack of compensation or other remedy

under Irish law was tantamount to a deprivation of property or a

control of the use of property in breach of Article 1 of the

Protocol (P1-1).

54. The Government maintain that there is no basis in fact for the

applicants' contention that Section 6 (1) of the 1982 Act did not

apply to them. They point out that the applicants did not bring the

appropriate proceedings before the courts to have this question

determined and that it was not decided by the Supreme Court in the

second Pine Valley case, that decision being restricted to the issue of

liability only. They stress that the remarks made by several of the

judges of the Supreme Court in that case that the applicants were

excluded from the benefit of Section 6 (1) were obiter dicta relating

to an issue which was not before the Supreme Court for decision.

55. In addition, the Government submit that the applicants could

have applied for compensation under Section 55 of the 1982 Act or

serve a Purchase Notice on the Planning Authority under Section 29 of

the Local Government (Planning and Development) Act 1963. The

Government further state that it would have been open to the

applicants to bring proceedings for damages against the former owner

of the land for breach of an implied covenant as to title or for

unjust enrichment.

56. In sum, the Government argue that in view of the many avenues

of redress which were open to, but not explored by, the applicants, it

cannot be said that there was a violation of Article 1 of the

Protocol (P1-1).

57. The Commission recalls the following general principles of

interpretation of Article 1 of the Protocol (P1-1) (see inter alia,

Eur. Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series A

No. 159, pp. 21-22, para. 54):

"Article 1 (Art. 1) in substance guarantees the right of property

(see the Marckx judgment of 13 June 1979, Series A No. 31,

pp. 27-28, para. 63). It comprises 'three distinct rules': the

first rule, set out in the first sentence of the first

paragraph, is of a general nature and enunciates the

principle of the peaceful enjoyment of property; the

second rule, contained in the second sentence of the first

paragraph, covers deprivation of possessions and subjects it

to certain conditions; the third rule, stated in the second

paragraph, recognises that the Contracting States are

entitled, amongst other things, to control the use of

property by enforcing such laws as they deem necessary in

the general interest (see the Sporrong and Lönnroth judgment

of 23 September 1982, Series A No. 52, p. 24, para. 61).

However, the three rules are not 'distinct' in the sense of

being unconnected; the second and third rules are concerned

with particular instances of interference with the right to

peaceful enjoyment of property and should therefore be

construed in the light of the general principle enunciated

in the first rule (see, inter alia, the Lithgow and Others

judgment of 8 July 1986, Series A No. 102, p. 46, para. 106)."

58. The Commission has first considered whether, in view of the

finding of the Supreme Court in the first Pine Valley case that the

outline permission was a nullity (i.e. that the right had never

existed), there can properly be said to be an interference with the

applicants' property rights. The Commission observes in this respect

that the applicants purchased the property relying on the validity of

the outline permission which appeared in the planning register.

Following the decision of the Supreme Court, the value of the property

was significantly diminished. At the time of the purchase of the

property there was no reason to doubt that the Minister for Local

Government was able to grant such a permission in contravention of the

development plan.

59. The applicants found themselves unable to develop their

property as a direct result of the Supreme Court's decision that the

interpretation by the Minister for Local Government of his statutory

powers was mistaken. In addition, they were unable to secure

compensation for the losses they had thereby incurred. The Commission

therefore finds that it would be unrealistic to regard the finding of

the Supreme Court to be conclusive of the question of interference in

this case.

60. The Commission must next examine the Government's claim that

Section 6 (1) of the 1982 Act applied to the applicants' property.

61. The Commission first observes that three of the judges in the

Supreme Court in the second Pine Valley case expressed the opinion

that the applicants were excluded from the benefit of Section 6 (1) by

the operation of Section 6 (2) of the 1982 Act.

62. Mr. Justice Finlay C.J. indicated that the 1982 Act

"contained a saver for cases involving constitutional rights of

other persons, which would appear to exclude the plaintiffs from the

benefit of such retrospective validation" (see para 39 above).

Mr. Justice Henchy (with whom Mr. Justice Griffin agreed) stated that

Section 6 of that Act "had the effect of giving retrospective validity

to planning permission ... save where such retrospective validation

would conflict with a constitutional right of any person. This meant

that Pine Valley were excluded from the benefit of the Section, for

they had exercised their constitutional right to litigate the validity

of the planning permission in the Courts" (see para. 40 above).

Finally, Mr. Justice Lardner stated with reference to the judgment of

the Supreme Court in the second Pine Valley case (see para. 41 above):

"No doubt it was apprehended that s. 6 (1) of the Local

Government (Planning and Development) Amendment Act 1982 might operate

to reverse retrospectively this Court's decision and that this might

constitute an unwarrantable interference by the legislature in a

decision of the courts. It seems probable that it was in these

circumstances that s. 6 (2) was enacted with a view to avoiding such

interference. And this subsection has been accepted by counsel for

both sides in the present case as excluding the appellants from the

benefit of s. 6 (1)."

63. The Commission considers that irrespective of whether the

above remarks concerned a point at issue in the proceedings or are to

be considered as obiter dicta, they show that according to these judges

the applicants were excluded from the benefit of Section 6 (1) of the

1982 Act.

64. The Government also contest Mr. Justice Lardner's statement

that the applicants' exclusion was accepted by counsel for both

sides. They deny that such a concession was made.

65. The Commission does not find it necessary to resolve this

dispute. It considers that the Government's claim that the

legislation covered the applicants' permission is inconsistent with

their defence in the second Pine Valley case. If the Government had

been of this view when the proceedings were brought, it would have

been open to them to plead this point before the courts. Such a

defence would have provided an obvious answer to the applicants' claim

in these proceedings to have suffered substantial financial loss

through reliance on the permission as well as an interference with

their property rights under the Constitution. Their failure to avail

of this defence is a telling, if not decisive, point in the

applicants' favour.

66. Finally the Commission considers it significant that no

mention of the possibility that the applicants' permission might be

covered by Section 6 (1) was made by either Dublin County Council or

An Bord Pleanála in reply to the various letters written to them on

the applicants' behalf following the enactment of the 1982 Act (see

para. 33 above).

67. Taking the above factors into consideration the Commission

finds that it cannot now be claimed that Section 6 (1) of the 1982 Act

applied to the applicants' permission.

68. As regards the possibility of obtaining compensation for the

reduction in value of their property resulting from the decision of

the Supreme Court, the Commission does not consider that the

Government have shown that the applicants would be entitled to such

compensation under Section 55 of the Local Government (Planning and

Development) Act 1963. In this respect Section 55 provides that where

there is a refusal of permission to develop land the planning

authority shall pay compensation where "the value of an interest of

any person existing in the land to which the decision relates at the

time of the decision" is reduced (see para. 43 above). Following the

decision of the Supreme Court in the second Pine Valley case the first

applicant applied to Dublin County Council for planning permission and

was refused on the basis that the outline permission was a nullity.

Even if Section 55 were applicable, the applicants would only be

entitled to compensation for the reduction in value of the property at

that time which no longer enjoyed the benefit of the outline

permission.

69. Similarly the compensation payable under Section 29 of the

1963 Act following a Purchase Notice would be calculated on the basis

of the value of the property in the open market at the time of such

purchase, which value had been substantially reduced by the invalidity

of the outline permission (see para. 44 above).

70. The Government further contend that it would have been open to

the applicants to sue the former owner of the land for breach of an

implied covenant as to title or for unjust enrichment. In this regard

the Commission has already expressed the view in the admissibility

decision that there existed substantial doubt as to whether these actions

would have been likely to provide redress for the applicants' complaints.

71. It is true that Mr. Justice Henchy in the second Pine Valley

case considered that a cause of action for damages would possibly lie

on either of these grounds although these issues were not addressed by

any of the other four judges in the Supreme Court. The applicants, on

the other hand, have made submissions with reference to the applicable

law that a legal action on these grounds would offer no prospects of

success. Apart from the assertion that such claims were open to the

applicants the Government have not sought to take issue with the views

as to the relevant legal principles expressed in the applicants'

submissions. Against this background the Commission considers that the

Government have failed to show that the applicants could have recovered

their losses in this way.

72. To sum up, the Commission finds that the applicants were

unable to develop the property and received no compensation or other

remedy for its reduction in value and other losses and that the

Government have not shown that there were other effective channels

open to the applicants to obtain such compensation. Accordingly, in

these respects there has been an interference with the property rights

of the second and third applicants.

The Article 1 (Art. 1) rule applicable to the case

73. The Commission recalls the remarks of the European Court of

Human Rights in the Sporrong and Lönnroth case that, in the absence of

a formal expropriation, the realities of the situation complained of

must be examined with a view to ascertaining whether a form of de

facto expropriation has taken place (see Eur. Court H.R., judgment of

23 September 1982, Series A No. 52, p. 24, para. 63; also No.

12033/86, Fredin v. Sweden, Comm. Report 6.1.89, paras. 51-60).

74. The applicants claim, in this respect, that the failure either

to grant them planning permission or to award them compensation for

the losses incurred through reliance on the validity of the outline

permission constitutes either a wrongful deprivation of property or a

control of the use of property which is not in the general interest.

75. The Government submit that what is admitted as bona fide

action on the part of the Minister for Local Government could not

amount to a deprivation of property in these circumstances.

76. The Commission notes that a grant of outline planning

permission confers a right to development in principle under Irish law

(see para. 45 above). Such a right to development increases the

market value of the property. The Commission considers that the

economic interests connected with outline planning permission

constitute "possessions" for the purpose of Article 1 of the

Protocol (P1-1) (see, mutatis mutandis, Eur. Court H.R., Tre

Traktörer AB judgment of 7 July 1989, loc. cit., p. 21, para. 53;

also No. 12033/86, Fredin v. Sweden, Comm. Report 6.11.89, para. 48).

77. It is true that in the present case the value of the property

in question appears to have diminished significantly following the

finding by the courts that the outline planning permission was

invalid. However, the applicants still retained title to their

property and were free to dispose of it as they saw fit and to use it

subject to the applicable restrictions. The Commission does not

consider that the finding by the courts that the outline planning

permission was invalid and the commercial consequences flowing from it

can be assimilated to a deprivation of possessions. It therefore finds

that the present case does not involve a deprivation of possessions

within the meaning of the second sentence of Article 1 of the Protocol

(P1-1) (see, in this context, Nos. 10522/83, 11011/84, 11070/84, Mellacher

and others v. Austria, Comm. Report 11.7.88, p. 4, para. 188).

78. The Commission is of the opinion that the applicants'

complaint falls rather under the second paragraph of Article 1 of

Protocol No. 1 (Art. (P1-1-2) as relating to a control of the use of

property. At the root of the applicants' complaint under this

provision is the decision by the courts that the outline planning

permission was invalid. This decision related to the interpretation

and enforcement of planning legislation and, as such, must be seen as

a control of the use of property (see, for example, No. 10824/84,

Jacobsson v. Sweden, Comm. Report 8.10.77, p. 20, para. 132 and No.

11723/85, Dec. 7.5.87, to be published in D.R.).

Compliance with the requirements of the second paragraph

79. The role of the Commission under the second paragraph of

Article 1 of the Protocol (P1-1-2) is to supervise firstly whether, in the

enforcement of the law, the control of use pursues a legitimate aim

"in the general interest" and secondly whether the control actually

exercised on the applicants' use of property is proportionate to the

legitimate aim pursued. The question of proportionality, which is

inherent in the Convention, requires the Commission to determine

whether, whilst recognising the wide margin of appreciation afforded

to States in the planning field, a fair balance was struck between the

general interest of the community and the protection of the

individual's rights (see, as the most recent authority, Eur. Court

H.R., Mellacher and Others judgment of 19 December 1989, Series A No.

169, para. 48).

80. The finding by the Supreme Court in the first Pine Valley case

that the outline permission was invalid in view of the Minister's

powers under Section 26 of the 1963 Act must be considered to

represent the correct legal position under Irish planning law. The

Commission is also satisfied that the aim of enforcing planning

legislation was a legitimate one in the general interest (see No.

11723/85, loc. cit.). As the Commission remarked in the Sporrong and

Lönnroth case (see Comm. Report 8.10.80, para. 111, Eur. Court H.R.,

Series B no. 46, p.50), "in the increasingly complex and ever

developing society of today, it is indispensable that the use of land

be regulated by detailed and careful planning".

81. The applicants' complaint, however, amounts to a claim that

the measures in their case were disproportionate to the achievement of

the legitimate planning aim. While not alleging bad faith on the part

of the Minister for Local Government, they point out that they had

purchased the property in reliance upon the validity of the outline

planning permission in a situation where it could not reasonably be

foreseen that it would be subsequently struck down by the courts.

They were not granted compensation even though their case was unique

and they were excluded from the benefit of legislation subsequently

passed to confer retrospective validity on all other permissions and

approvals affected by the Supreme Court judgment in the first Pine

Valley case.

82. The Government submit that in planning matters the State

must enjoy a wide margin of appreciation and that the control of use

in the present case was justified for reasons relating to the proper

enforcement of planning legislation. Moreover, the decision of the

Supreme Court rejecting the applicants' claim for compensation was

also justified in the interests of the effective administration of

public affairs as described by Mr. Justice Finlay C.J. in the second

Pine Valley Case (see para. 38 above).

83. The Commission notes that a deprivation of property would

normally give rise to a right to compensation under Article 1 of the

Protocol (P1-1). As the European Court of Human Rights has indicated, a

reasonable relationship of proportionality to the aims pursued implies

a right to compensation in such circumstances (see Eur. Court H.R.,

James judgment of 31 January 1986, Series A No. 98, p. 36, para. 54;

Lithgow and Others judgment of 8 July 1986, Series A No. 102, pp.

50-51, para. 121).

84. The Commission would not exclude that a control of use may

also require compensation in certain circumstances. However, it does

not find that the failure to compensate the applicants or to validate

their outline permission amounts to a disproportionate interference

with their property rights in the circumstances of the case.

85. It is true that compensation is payable in many jurisdictions

(including Ireland) where planning permission is withdrawn or cancelled

resulting in a reduction in the value of the property. The right to

compensation in such cases is based on a recognition that a grant of

planning permission enhances the commercial value of property thereby

giving rise to a legitimate expectation that the property can be

developed. However, in the present case the very basis of the

applicants' expectation was flawed since the original grant of outline

permission was beyond the statutory power of the Minister for Local

Government. While recognising the hardship that can arise in these

circumstances, the Commission considers that the case falls to be

distinguished from the withdrawal of planning permission which is

tantamount to the deprivation of valuable rights attaching to the

property in circumstances where the legitimate expectation is well

founded in law.

86. In addition the Commission considers that the purchase of land

with a view to commercial development involves a strong element of

risk and speculation. As the Supreme Court observed in the second

Pine Valley case, "changes in market values or economic forces,

changes in decisions of planning authorities and the rescission of

them, and many other factors, indeed, may make the land more or less

valuable in the hands of its purchasers" (see para. 38 above). As

with many other commercial transactions the value of assets may be

considerably reduced by unforeseeable developments for which the State

cannot be held responsible. Indeed it is for this reason that

purchasers may seek to protect their interests by inserting a

condition in a contract for the sale of land that performance is

dependent on the obtaining of planning permission.

87. In the present case the Commission considers that the risks

associated with the proposed development were accentuated by the fact

that the property was situated in an area zoned as a "green belt" and

was subject to a special procedure of ministerial consent before

permission could be granted. It subsequently transpired that the

Minister for Local Government had misinterpreted the relevant

legislative provision and granted the outline permission in excess of

his powers. The courts, while finding that the Minister was wrong in

his interpretation of his powers, found that he had acted bona fide on

the advice of his legal advisers and had not been negligent.

88. In the light of these considerations the Commission finds,

having regard to the wide margin of appreciation enjoyed by States

under the second paragraph of Article 1 of the Protocol (P1-1-2) in the

enforcement of planning legislation, that the failure to compensate

the applicants or validate their outline permission by legislation was

not disproportionate to the aims pursued. The interference with the

applicants' property rights was thus justified under the terms of the

second paragraph of Article 1 of the Protocol (P1-1-2).

Conclusion

89. The Commission concludes:

(1) by nine votes to four, that there has been no violation of the second

applicant's rights under Article 1 of the Protocol (P1-1);

(2) by ten votes to three, that there has been no violation of the

third applicant's rights under Article 1 of the Protocol (P1-1).

C. Article 14 of the Convention in conjunction with

Article 1 of the Protocol (Art. 14+P1-1)

90. Article 14 (Art. 14) states as follows:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

91. The applicants complain that they were the victims of

discrimination in that they were excluded from the benefit conferred

by Section 6 (1) of the 1982 Act while others similarly situated had

their permissions and approvals retrospectively validated.

92. The Government contend that no issue of discrimination arises

since Section 6(1) of the 1982 Act in fact applied to the applicants.

93. The Commission recalls the constant case-law of the Commission

and the Court that a difference of treatment in the enjoyment of a

Convention right is discriminatory if it "has no objective and

reasonable justification". As the Court has stated in the Belgian

Linguistic case (Eur. Court H.R., judgment of 23 July 1968, Series A

no. 6, p. 34, para. 10):

"The existence of such a justification must be assessed in

relation to the aim and effects of the measure under

consideration, regard being had to the principles which normally

prevail in democratic societies. A difference of treatment

in the exercise of a right laid down in the Convention must

not only pursue a legitimate aim; Article 14 (Art. 14) is likewise

violated when it is clearly established that there is no

reasonable relationship of proportionality between the means

employed and the aim sought to be realised."

94. The Commission notes its finding that it cannot now be

claimed that Section 6 (1) applied to the applicants (see para. 67

above).

The first applicant

95. However, the Commission recalls that the first applicant sold

the property to the second applicant for the equivalent of the

purchase price (see para. 23 above). In these circumstances the

Commission finds that the first applicant cannot complain of

discriminatory treatment contrary to Article 14 (Art. 14) of the

Convention.

Conclusion

96. The Commission concludes, by a unanimous vote, that there has

been no violation of the first applicant's rights under Article 14

of the Convention in conjunction with Article 1 of the Protocol (14+P1-1).

The second and third applicants

97. It is not contested by the Government that others in the same

situation as the applicants had their permissions validated by Section

6 (1) of the 1982 Act. Since the applicants must be regarded as

having been excluded from the retrospective validation of their

outline permission under Section 6 (1) there is thus a difference in

treatment in the enjoyment of their property rights under Article 1 of

the Protocol (P1-1) between them and others placed in an analogous

situation.

98. The Commission notes that the Government have not sought to

argue that such a difference in treatment had an objective and

reasonable justification. However it observes the views expressed

by several members of the Supreme Court (see paras. 40 and 41 above,

Mr. Justice Henchy and Mr. Justice Lardner) that the purpose of the

difference in treatment was to avoid an unwarrantable interference by

the legislature with the decision of the courts in the second Pine

Valley case.

99. The Government, however, have not sought to rely on this

reason and have pointed out that it is open to the legislature to

reverse the decision of the courts once the court proceedings have

terminated (see para. 47 above).

100. Although the Commission has found that Article 1 of the

Protocol (P1-1) does not require the respondent State to compensate the

applicants it can see no justification for the difference in treatment

in the present case. In the Commission's opinion when the State

decided to remedy the consequences of the error that occurred in the

granting of planning permissions, Article 14 (Art. 14) required that

it be done in an even-handed manner (see, mutatis mutandis, Eur.

Court H.R., Belgian Linguistic judgment, loc. cit., p. 33, para. 9).

Conclusion

101. The Commission concludes:

(1) by twelve votes to one, that there has been a violation of the

second applicant's rights under Article 14 of the Convention in

conjunction with Article 1 of the Protocol (Art. 14+P1-1);

(2) by twelves votes to one, that there has been a violation of the

third applicant's rights under Article 14 of the Convention in

conjunction with Article 1 of the Protocol (Art. 14+P1-1).

D. Article 13 (Art. 13) of the Convention

102. The applicants also complain that they have been denied an

effective remedy in breach of Article 13 (Art. 13) of the Convention.

The Government maintain that there exist effective remedies under Irish

law in respect of the applicants' complaints.

103. Article 13 (Art. 13) 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."

104. Article 13 (Art. 13) guarantees the availability of a remedy

at national level to enforce - and hence to allege non-compliance with

- the substance of the Convention rights and freedoms in whatever form

they may happen to be secured in the domestic legal order (see Eur.

Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No.

131, p. 23, para. 52).

105. It does not however require that the pursuit of the remedy be

successful (see Boyle and Rice case, Comm. Report 7.5.86, loc. cit.,

p. 43, para. 96).

106. The Commission notes that it was open to the applicants to

raise the substance of their Convention complaints before the Irish

courts. Accordingly there existed an effective remedy within the

meaning of Article 13 (Art. 13) of the Convention.

Conclusion

107. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 13 (Art. 13) of the Convention.

F. Recapitulation

108. The Commission concludes

- by a unanimous vote, that there has been no violation of the

first applicant's rights under Article 1 of the Protocol (P1-1) (para. 51);

- (1) by nine votes to four, that there has been no violation of

the second applicant's rights under Article 1 of the Protocol (P1-1).

(2) by ten votes to three, that there has been no violation of

the third applicant's rights under Article 1 of the Protocol

(P1-1) (para. 89);

- by a unanimous vote, that there has been no violation of the

first applicant's rights under Article 14 of the Convention in

conjunction with Article 1 of the Protocol (Art. 14+P1-1) (para. 96);

- (1) by twelve votes to one, that there has been a violation of

the second applicant's rights under Article 14 of the Convention in

conjunction with Article 1 of the Protocol (14+P1-1);

(2) by twelves votes to one, that there has been a violation of

the third applicant's rights under Article 14 of the Convention in

conjunction with Article 1 of the Protocol (Art. 14+P1-1) (para. 101);

- by a unanimous vote, that there has been no violation of

Article 13 (Art. 13) of the Convention (para. 107).

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

DISSENTING OPINION OF MR. LOUCAIDES,

joined by MR. VANDENBERGHE, MRS. THUNE and MR. ROZAKIS

I find myself unable to agree with the conclusion of the

majority that the facts in this case do not justify the finding of a

violation of the second and third applicants' rights under Article 1 of

the Protocol.

The planning permission in this case, which conferred the

right to development of the land in question and increased

significantly its market value, was a right attached to such land,

determining its use and value, and therefore part of this property the

peaceful enjoyment of which is safeguarded under Article 1 of the

First Protocol to the Convention.

The permission was legally in force at the time of the

acquisition of the land in question by the applicant. It was issued

by the competent Minister and there was nothing on the face of the

permit or in the surrounding circumstances that could give any doubt

as to its validity. In fact the permission was registered in an

official planning register. Therefore the applicant was entitled to

assume that such permission was legally in order. In these

circumstances the purchase of the land in question with a view to

commercial development could not reasonably have involved an element of

risk and speculation because of the legal defect of such permit which

was found later on by the courts.

The judicial finding that the grant of the planning permission

in question was invalid, resulting in a severe limitation of the

lawful use of the property in question and in an enormous reduction of

its value, was certainly, in my view, an interference with the

peaceful enjoyment of such property. At the same time the annulment

of such permission amounted to a deprivation of the economic interests

connected with the same permission which by themselves constituted

"possessions" for the purposes of Article 1 of the Protocol No. 1.

Such interference and deprivation were legitimate but they were

not, in my view, in the circumstances of this case, proportionate to

the aim pursued having particular regard to the following:

(i) The applicant purchased the property in question in

reliance upon the existence of the planning

permission in question in circumstances where he

could not reasonably have foreseen that it would be

subsequently struck down by the courts.

(ii) The difference in the value and the possible use

of the land with the permission and without the

permission was enormous.

(iii) No compensation whatsoever was paid to the applicant

as a result of the annulment of the permission in

question and no retrospective validation of such

permission took place though in other similar cases

the respondent State through relevant legislation

found it necessary and did validate through

legislation retrospectively similar permissions.

The fact that the planning permission in question was found by

the courts to be invalid ab initio does not, in my view, distinguish

this case (for the purposes of the issue under consideration) from the

case of a withdrawal of a planning permission. In both cases the

beneficiaries of the permissions could reasonably base legitimate

expectations that the permits were and would remain valid so long as

they were issued by the competent authorities, they have not

themselves contributed to the withdrawal or the annulment of the

permissions, and the reasons which could lead and in fact led to such

withdrawal or annulment were not obvious or known to them.

Furthermore there cannot be any material distinction between the two

cases so long as the responsibility for both the withdrawal and the

annulment of the permission is exclusively attributed to the state.

For the above reasons I conclude that the interference with

the applicants' property rights was not justified under the terms of

the second paragraph of Article 1 of the Protocol.

PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION

by Mrs. J. Liddy

To my regret I find myself unable to share the opinion of the

Commission that there has been a violation of the Convention in this

case and here are my reasons.

Preliminary: "The applicant"

1. There seems to me to be clear ground for distinguishing between

the position of the third applicant, Mr. Healy, and that of the second

company, Healy Holdings Limited, which, although in receivership since

1985, has shown no interest in and produced no evidence for proceedings

under the Convention. It consequently has not established any

interference with its own property rights. With regard to the first

applicant company I agree (paragraph 51 of the Report) that there has

been no interference with its property rights. Accordingly, references

hereafter to "the applicant" are to the third applicant, Mr. Healy.

Article 1 of Protocol No. 1

2. I agree (paragraph 78 of the Report) that at the root of the

complaint is the decision by the Supreme Court on 5 February 1982

declaring invalid an "outline permission" (not a "permission", that

is, a full permission) which had been granted on 10 March 1977 and

which, subject to later approval of detailed plans, permitted

industrial development on land zoned for agricultural use.

3. I also agree (paragraph 89 of the Report) that there has been

no violation of Article 1 of the Protocol but unlike the Commission I

have addressed this issue solely by reference to the decision of

5 February 1982, and not by reference to the later events.

4. The decision of 5 February 1982 removed the possibility of

obtaining an approval based on one particular outline permission.

It did not remove the possibility of seeking a new outline permission,

or indeed a permission (full permission) based on detailed plans.

There was no deprivation of a possibility of building immediately on

the land, as full permission had never been given and accordingly no

development could have started. There was no deprivation of the

possibilities of availing of the mechanisms of Sections 29 and 55 of

the Local Government (Planning and Development) Act 1963 (see

paragraph 43 of the Report) with a view to obtaining financial

recompense in respect of a refusal of permission to develop land.

There was no transfer of the land or suspension of existing uses: it

could be let, sold and used as it had always been used and as zoned,

that is, for the further development of agriculture.

5. The decision of 5 February 1982 amounted in the circumstances to a

control by the judicial organs of the laws regulating the control of

property. As stated by the Supreme Court on 5 February 1982 "the

planning authority cannot be compelled to violate the provisions of

the Act". The zoning of lands for agricultural use is undoubtedly a

legitimate public and hence general interest for the purpose of

Article 1 of the Protocol (cf. Hakansson and Sturesson judgment of 21

February 1990, para. 44). The second paragraph of Article 1 is

therefore applicable.

6. In the case of Mellacher and Others (judgment of 20 June 1989,

para. 57) the Court examined a legislative scheme governing rent

control and concluded that, when enacting the law, the Austrian

legislature, having regard to the need to strike a fair balance

between the general interests of the community and the right of

property of landlords, "could reasonably hold that the means chosen were

suited to the legitimate aim pursued". In the instant case, the

question of whether by reason of the annulment of an outline planning

permission the applicant had to bear a disproportionate burden cannot

be dissociated from the legislative content described at paragraph 43

and 44 of the Report, that is, the provision made for financial

recompense where permission to develop land has been refused.

7. The applicant availed himself of the law relating to limited

liability companies in the purchase of the land. The evidence

available as to the risks taken when the land was bought and as to the

conduct of the applicant subsequently does not support the view that

he was made to carry a disproportionate burden by reason of the

annulment of the outline permission in 1982. Specifically there is no

evidence that the mechanisms for seeking financial recompense under

sections 29 and 55 of the Local Government (Planning and Development)

Act 1963 proved inadequate. To reach a finding of a violation I would

have to conclude both that the annulment by a court of such a

provisional permission requires adequate compensation and that the

statutory provisions for financial recompense were as a matter of fact

inadequate, but existing Convention case-law does not support such

conclusions. It is on this basis that I conclude that a fair balance

has been struck in this case and that there is no violation of Article

1 of Protocol No. 1.

Article 14 of the Convention in conjunction with Article 1 of the Protocol

8. I turn now to the events after 5 February 1982. Fundamental

to the complaint under Article 14 are two assumptions: first, that

the remedial legislation which entered into force on 28 July 1982

failed to validate retrospectively the applicant's outline permission

and, secondly, that the Supreme Court so held on 30 July 1986 when, in

proceedings initiated as an action in negligence, it decided that no

cause of action lay as pleaded.

9. Fundamental to the Commission's opinion (paragraph 94 and, by

reference back, paragraphs 63 to 67) is the premise that even if the

Supreme Court did not so hold in its ratio decidendi

("irrespective of whether the above remarks concerned a point at issue

in the proceedings"), that is, even if the remedial legislation did

validate retrospectively the outline permission, nonetheless,

essentially because the defence did not raise the issue of the correct

interpretation of Section 6(1), the Commission will take as the

correct interpretation that claimed by the applicant in reliance on

obiter dicta.

10. I cannot share either the applicant's assumptions or the

Commission's premise but consider rather that it has not been

established that there was in fact any difference between the

applicant and others who had their permissions validated by Section 6,

with the consequence that there was no violation of Article 14.

11. Section 6 of the Local Government (Planning and Development) Act

1982 retrospectively validated permissions granted on appeal by the

Minister. At first, the applicant acted on the basis that he benefited

from Section 6 and applied for planning approval. On 10 December 1982

the local authority refused approval inter alia on the basis that the

outline permission was invalid and stated that an appeal could be

made within one month of notification of the decision. The applicant

did not appeal or challenge that decision. He did not avail of the

mechanisms in Sections 29 and 55 of the 1963 Act, nor challenge the

validity of that part of Section 6 which he interpreted as excluding

him from the benefit of retrospective validation, nor seek by means of

a declaratory action to establish the correct interpretation of the

law (see, for example, Annex 8(a) to the applicant's observations of

9 May 1989: E.S.B. v. Gormley 1985 I.R.129). Instead, on 11 March 1983

he initiated proceedings in negligence which, by agreement, were

confined to establishing whether a cause of action in damages lay at

all. This issue was determined on the premise pleaded by the applicant

and without evidence except as to the Minister's having acted on legal

advice, that is, as to his bona fides.

12. As the Commission has remarked, it is a normal feature that

the latitude of a court dealing with civil claims be limited by the

demands made by the parties (see Helmers v. Sweden, Comm. Report

February 1990, para. 55). With full respect for legal systems which

attach more significance to obiter dicta than do others (see two

extracts from "Precedent in English law" by Professor Rupert Cross

relating to (i) the English doctrine of precedent and a comparison

with France and (ii) Ratio decidendi and obiter dictum, at

Annexes VI and VII to the Government's observations of 13 November

1989), I do not consider that the judgment of 30 July 1986 has

"decided" on the correct interpretation of Section 6. Moreover, I do

not follow the reasoning whereby the stance taken by the defendants in

civil proceedings should enable the organs of the Convention to

conclude that the plaintiff's contention was, as a matter of fact and

domestic law, correct.

13. The Court has frequently pointed out (see for example the Kruslin

judgment of 24 April 1990, para. 29) that it is primarily for the

national authorities, notably the courts, to interpret and apply

domestic law. I think that this interpretation should in principle be

by way of ratio decidendi.

14. In the present case there was no pleading on the interpretation

of Section 6 at domestic level either to the extent that has taken

place before the Commission or at all. Unless and until there is a

decisive interpretation of Section 6 I must express overwhelming doubts

as to whether under Irish law* the applicant was ever excluded from its

benefits. Accordingly I reach the associated opinion that under

Article 14 he has failed to establish that there was any distinction

between his outline permission and others retrospectively validated.

There was therefore no violation of Article 14.

__________

* Under Irish law, the applicant considered that although his own

proceedings culminated on 5 February 1982, a proviso in Section 6

which was intended to preserve the rights of parties to any

proceedings pending when the remedied legislation was enacted (July

1982) operated to exclude him from its benefits (see paragraph 30 of

the Report and his observations in the decision on admissibility).

However, see "The Irish Constitution" (J. M. Kelly) at page 191 of the

1st edition (1980) and page 232 of the 2nd Edition (1984) (emphasis

added): "What does appear to be inviolable is the actual judicial

process itself while in operation; once begun it must be

allowed to run its course without interference."

__________

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

6 January 1987 Introduction of the application

23 February 1987 Registration of the application

Examination of Admissibility

8 October 1987 Commission's decision to invite the

Government to submit observations

on the admissibility and merits

of the application

15 March 1988 Government's observations

9 May 1988 Applicant's observations in reply

12 December 1988 Commission's decision to hold

an oral hearing

3 May 1989 Oral hearing on admissibility and

merits, Commission's decision to declare

the application in part admissible

and in part inadmissible

13 July 1989 Commission approves text of decision

on admissibility

Examination of the merits

9 August 1989 Decision on admissibility transmitted

to the parties

13 November 1989 and

9 February 1990 Government's observations on the merits

12 January 1990 Applicant's observations on the merits

15 March 1990 Commission's consideration of the

state of proceedings

.. May 1990 Commission's deliberations on the

merits, final vote and adoption of

the Report

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PINE VALLEY DEVELOPMENTS LTD AND OTHERS v. IRELAND

PINE VALLEY DEVELOPMENTS LTD AND OTHERS v. IRELAND