Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28488/95

by Richard James Joseph McGONNELL

against the United Kingdom

The European Commission of Human Rights sitting in private on

22 January 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 June 1995 by

Richard James Joseph McGONNELL against the United Kingdom and

registered on 9 September 1995 under file No. 28488/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

23 April 1997 and the observations in reply submitted by the

applicant on 18 June 1997;

Having deliberated;

Decides as follows:

THE FACTS

A. The particular circumstances of the case

The applicant is a British national. He was born in 1955.

In October 1982 the applicant purchased a vinery (glasshouses)

and a plot of land. In 1983 he applied for permission to build a

dwelling on the land. Permission was refused and he lost an appeal in

May 1984.

In May 1986 the applicant, who was in financial difficulties,

moved to live in a flower packing shed on his property as a temporary

measure. His problems were compounded by frost and hurricanes in 1987

- 1989, which destroyed part of his glasshouses together with the

crops.

On 28 June 1990 a Detailed Development Plan Number 6 (DDP No. 6),

under Section 6 (1) of the Island Development (Guernsey) Law 1966 as

amended ("the 1966 Law"), was approved. This plan covered the

applicant's land.

Prior to the approval of DDP No. 6 there was a Public Planning

Inquiry, in accordance with section 10 of the 1966 Law. At that

inquiry, the applicant was represented by an advocate. The applicant's

representations that he be allowed a dwelling place on the land were

rejected by the Inspector, on the basis that a dwelling would be an

intrusion into the agricultural/horticultural hinterland.

Within DDP No. 6 the applicant's land was zoned as "Developed

Glasshouse Area" and the adjoining land was zoned as a "White area".

In September 1990 the applicant submitted to the Island

Development Committee (IDC) a retrospective application for permission

to convert his packing shed within the area zoned "Developed Glasshouse

Area" into a dwelling. The application for change of use was refused

in July 1991. The IDC requested the applicant to cease using his shed

as a dwelling within 3 months. Due to his financial position the

applicant stayed in his shed. In October 1991, when his debts had

risen to over £100,000, the applicant sold part of the land and

glasshouses, but kept the shed and a plot of land alongside it.

In March 1992 the applicant pleaded guilty in the local

Magistrates Court to a charge of illegal change of use of the shed.

He was fined £100. No further order was made against him.

In June 1993 the Royal Court of the Island of Guernsey ordered

the applicant to vacate the shed and restore it back to a packing shed

within 3 months.

On 10 August 1993 the applicant wrote to the IDC, once again

asking for a change of use of the packing shed. His representative's

letter of that date underlined that the applicant would continue to

work in the glasshouses which he still rented, that the exterior of the

property would not be changed at all, that the applicant would comply

with building regulations, that the future use of the building would

not be prejudiced by permission to change the use, and that the use of

the building as a dwelling would not derogate from any visual amenity.

On 25 October 1994 the IDC, having previously conducted a site visit,

refused to agree to the change of use. Its letter of 26 October 1994

gave as a reason:

"The site is located within a Developed Glasshouse Area and the

Committee's written statement of policy makes no provision for

the form of development proposed."

The applicant appealed to the Royal Court. At the hearing on

6 June 1995, the applicant was represented by Advocate Perrot. The

Royal Court sat as a full court and was presided over by the Bailiff.

Advocate Perrot accepted that the written statement provided for no

development other than Developed Glasshouse of the area, but submitted

that there were nevertheless reasons in the case to permit the change

of use: the external appearance of the building would not change and

there would be no future prejudice to the horticultural use of the

land, such that it was unreasonable for the IDC to take an unduly

narrow view of what it allowed under the DDP. The Bailiff then summed

up the applicant's complaints to the Jurats, instructing them that it

was for the IDC to satisfy the Jurats that the IDC's decision was

reasonable, rather than the reverse.

The appeal was dismissed on the same day. The Jurats were

unanimous in their finding that the decision of the IDC was a

reasonable one. The decision recites the grounds of appeal, but gives

no reasons.

B. The relevant domestic law and practice

Land use in the island of Guernsey is controlled by the

provisions of the Island Development (Guernsey) Law 1966, as amended

("the 1966 Law").

Section 6 (1) of the 1966 Law provides for the preparation of:

"Detailed Development Plans, indicating the manner in which the

Island Development Committee (IDC) proposes that land should be

used (whether by development or otherwise) and the stages by

which such development should be carried out."

Section 6 (3) of the 1966 Law states that such plans may:

"define areas in respect of which the Committee recommends that

permission for development in pursuance of the provisions of

Part III of this Law -

(i) should not be granted,

(ii) should not be granted unless by reason of special

considerations relating to the site it would be unreasonable for

such permission not to be granted,

(iii) should, subject to the provisions of Part III of this Law,

be granted ...".

A Detailed Development Plan (DDP) has legal effect when approved

by the States of Deliberations (the Guernsey legislature). Prior to

approval of a DDP a Public Planning Inquiry may be held.

Interested parties are permitted to make representations to the

Inspector at a Public Planning Inquiry either in person or by an

advocate of the Royal Court, or other prescribed person. The procedure

at the Planning Inquiry is at the discretion of the Inspector. He has

power to summon and examine all persons as he thinks fit; require any

such person to answer any question or furnish any information or

produce any document; take statements from all persons he may think fit

and enter and inspect any premises he deems necessary for the purposes

of the inquiry.

After holding a Planning Inquiry the Inspector prepares a written

report containing his recommendations on the DDP or proposals for

alteration and submits the report to the IDC.

A DDP has a duration of five years under section 7 of the 1966

Law, and within that period Section 8 of the 1966 Law requires the IDC

to review the Plan.

In connection with "Developed Glasshouse Areas" the DDP

provides:

"Development within these zones for other purposes will not be

permitted but further modernisation and glasshouse consolidation

will not be resisted. Obsolete glasshouses in these areas may

be demolished so that the land may revert to open horticultural

or agricultural use until required again for horticultural

development."

"White areas" are defined as being reserved for agricultural use

and/or visual amenity. In such areas development will in general be

prohibited, and whilst in specific situations developments may be

approved there will be a presumption in favour of retaining the present

use of land and buildings.

Development is defined in section 40 of the 1966 Law as "the

carrying out of any building engineering, mining or other operation in,

on, over or under land and includes the making of any material change

in the use of any building or land".

By section 14 (1) of the 1966 Law, written permission must be

obtained from the IDC for the carrying out of any development of land.

Under section 17 the IDC must take into account any relevant DDP.

Departures from a DDP are permitted by Section 18 if:

"in the opinion of the Committee, it is a departure of a minor

nature not warranting specific reference to the States under the

provisions of section 8."

By section 26 of the 1966 Law, a person has a right of appeal

from a decision of the IDC concerning a change of use, to the Royal

Court. An appeal may be made on the ground that the decision of the

Committee was "ultra vires or was an unreasonable exercise of its

powers".

The Composition of the Royal Court

When sitting as a full court, the Royal Court is presided over

by the Bailiff or in his absence the Deputy Bailiff or a Lieutenant-

Bailiff. The Court consists of not less that seven out of the twelve

Jurats.

The Bailiff

The Bailiff is appointed by the Sovereign and holds office during

Her Majesty's pleasure. He is the president of the Royal Court and

President of the Court of Appeal, spending the majority of his time

discharging judicial functions. By convention, he is a senior qualified

lawyer.

The role of the Bailiff as the President of the Royal Court is

to determine questions of law and to direct the Jurats on the relevant

law and as to the matters which they should consider in determining

issues of fact. The directions of the Bailiff are delivered orally in

open court, whereupon the Jurats retire to consider their decision in

private.

The Bailiff is also the President of the States of Deliberation

(the Island legislature), and President of the States of Election (an

electoral college responsible for appointing the jurats). Within both

of these roles he has no original vote, but does hold a casting vote

in the event of equality of votes.

The States of Election consists of the following members:

(a) The Bailiff;

(b) The 12 Jurats;

(c) 12 Conseillers (persons who have served for at least

30 months in the States of Deliberations and who are

elected by universal suffrage for a term of 6 years);

(d) The 10 Rectors;

(e) The Law Officers of the Crown (i.e. HM Procureur and HM

Comptroller);

(f) 33 People's Deputies (elected to the States by universal

suffrage for a term of 3 years);

(g) 34 Douzaine Representatives (persons nominated to the

States by the Douzaine - or parish councils - for a term of

1 year, a council being elected by the voting inhabitants

of the parish in question).

The Bailiff is also the head of the administration of the Island.

It is through the Bailiff that official communications between the

Island's administration, Her Majesty's Government and the

administrations of the other islands are channelled. He chairs four

States Committees, namely the States Appointments Board (dealing with

senior civil service appointments - this does not include any of the

personnel of the IDC), the Emergency Council (charged with determining

whether a state of emergency should be declared), the Legislation

Committee (which is charged with ensuring that legislation is drafted

in accordance with resolutions of the States of Deliberation) and the

Rules of Procedure Committee which deals with the procedure of the

States of Deliberation and Election. The Bailiff takes no part in day

to day decision making by States Committees. In particular, he takes

no part in the deliberations of the IDC.

Jurats

Once appointed by the States of Election, a Jurat holds office

until he reaches 70 years of age. His period of office may be extended

to the age of 75 with the approval of his colleagues. By the second

proviso to section 5 (1) of the Royal Court of Guernsey (Miscellaneous

Reform Provisions) Law, 1950 a Jurat can only be dismissed by Her

Majesty, although the Bailiff can call upon a Jurat to resign.

Jurats do not form part of the States of Deliberation, although

a jurat may be a member of certain Committees of the States, such as

the Lifeboat Committee and the Legislation Committee. However Jurats

are not eligible to serve on the States Committee for Home Affairs, the

Gambling Control Committee or any States Committee which administers

legislation, the provisions of which include a right of appeal to the

Royal Court against a decision of the Committee. Thus Jurats may not

be members of the IDC, although they used to preside over planning

enquiries prior to the adoption of DDPs. This is no longer current

practice.

Appeal from the Royal Court

An individual has a right to petition the Judicial Committee of

the Privy Council, sitting in London, for special leave to appeal to

the Judicial Committee against the decision of the Royal Court.

However such leave is only given if the Judicial Committee is satisfied

that the case raises either a far reaching question of law or a matter

of dominant importance.

COMPLAINTS

The applicant claims that his right to respect for his home has

been violated. He also complains about the manner of conduct of these

proceedings, alleging that the judges in the Royal Court were civil

servants and that the Royal Court failed to give any reasoning for its

judgment of 6 June 1995.

The applicant alleges violations of Article 6 para. 1 and

Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 June 1995 and registered on

9 September 1995.

On 27 November 1996 the Commission (First Chamber) decided to

communicate the application to the respondent Government.

The Government's written observations were submitted on 23 April

1997, after an extension of the time-limit fixed for that purpose. The

applicant replied on 18 June 1997.

On 15 January 1998, the First Chamber decided to remit the case

to the Plenary Commission.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) about

the proceedings and the lack of independence of the Royal Court.

Article 6 (Art. 6) of the Convention, provides so far as relevant

as follows:

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

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

independent and impartial tribunal ..."

The Government submit that the applicant at no point had a right

to make use of his land for residential purposes. The shed which he

made his home was situated in a zone classified as a "Developed

Glasshouse" area and thus, except in special circumstances, residential

use was not permitted. In these circumstances the Government argue that

the proceedings, which ended with the Royal Court's decision of 6 June

1995, did not determine the applicant's civil rights or obligations

within the meaning of Article 6 (Art. 6) of the Convention.

The Government argue in the alternative that the Royal Court did

comply with the requirement of an "independent and impartial tribunal"

in accordance with Article 6 para. 1 (Art. 6-1) of the Convention. In

particular they note that in his role as the president of the Royal

Court, the Bailiff acts judicially and not in any sense as part of the

executive. Further, the Jurats are not members of the States of

Deliberation and may not be members of the IDC. The Government also

state that the Jurats were charged with decisions of fact and whether

the IDC's decision was reasonable or not and, as with a lay jury on a

criminal case in the United Kingdom, no reasons were given for a

finding of fact.

The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and fact under the Convention, including questions of the applicability

of Article 6 (Art. 6) to the proceedings, the determination of which

should depend on an examination of the merits.

The Commission concludes, therefore, that this part of the

application is not manifestly ill-founded, within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for

declaring it inadmissible have been established.

2. The applicant complains under Article 8 (Art. 8) of the

Convention, stating that the fact that he was unable to live on his

property amounted to a violation of his right to respect for his home.

Article 8 (Art. 8) of the Convention provides:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government submit that the shed where the applicant was

living did not constitute a home for the purposes of Article 8

(Art. 8) of the Convention. They note that the applicant commenced

residence in the shed at a time when such use was unlawful, and it

remained unlawful throughout. In the alternative the Government argue

that any interference with the applicant's residence in the shed was

in accordance with the 1966 Law, and pursued a legitimate aim, namely

planning regulations that sought to control development on the island.

As to the necessity for any interference, the Government point to the

margin of appreciation permitted to States, and to the procedural

safeguards which were present in the case. They also point out that

there was nothing extreme about the case: the applicant's land was

zoned as a Developed Glasshouse area, and it was not unreasonable for

the IDC to take into account the contents of DDP 6 or to decide not to

derogate from it.

The applicant repeats that he has not built anything on his land:

he merely wishes to live in his shed, whose exterior appearance remains

wholly unchanged. He also claims that, although he is not allowed to

live in the shed, he has to pay rates on an "unregistered dwelling".

The Commission notes that the applicant's occupation of the shed

was clearly unlawful: planning permission was refused on two occasions,

and the applicant was convicted in March 1992 of illegally changing the

use of the shed. However, illegality of occupation will not

necessarily prevent that occupation from being a person's "home" within

the meaning of Article 8 (Art. 8) of the Convention, and in the present

case the Commission accepts that the applicant was using his packing

shed as his home (see Eur. Court HR, Buckley v. United Kingdom,

judgment of 25 September 1996, Reports-1996-IV, p. 1288, para. 55).

The refusal of planning permission and the requirement to leave

within three months thus interfered with the applicant's right to

respect for his home.

It is therefore necessary to consider whether the interference

was "in accordance with the law", "pursued a legitimate aim" and was

"necessary in a democratic society", within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention.

It was undoubtedly within the powers of the States of Guernsey

through their Island Development Committee, applying the 1966 Law, to

refuse permission for a change of use in respect of the applicant's

shed, and all the relevant provisions were available. The interference

was therefore "in accordance with the law." Further, the restrictions

on the change of use of the applicant's shed can be said to have been

in pursuance of the legitimate aim of preserving the environment and

local character of the landscape by maintaining existing land uses.

With regard to whether the refusal of permission to allow the

applicant to live in his shed was "necessary in a democratic society",

the Commission recalls that, in the sphere of planning permission, the

State enjoys a wide margin of appreciation (see the above-mentioned

Buckley judgment, p. 1292, para. 75). Further, the European Court of

Human Rights in the case of Buckley found that the procedural

safeguards available to an applicant were relevant in determining

whether a state has remained within its margin of appreciation (above-

mentioned Buckley judgment, p. 1292, para. 76).

In the present case, the applicant must have been aware that his

occupation of his shed was unlawful when he applied for planning

permission: permission had already been refused once, and he had

pleaded guilty to unlawful change of use of the shed. The area was

zoned as a Developed Glasshouse area, and it was quite impossible for

the applicant to claim that his occupation of the shed fell within that

category. His application could only be granted if the IDC, and

subsequently the Royal Court, accepted that the proposed departure from

the DDP was no more than a minor development not warranting specific

reference to the States. In the Royal Court, the burden was on the IDC

to satisfy the Court that its decision not to grant permission was

reasonable, and after the oral proceedings, and the directions from the

Bailiff, the Jurats found that the decision was not unreasonable.

It is true that there was no express consideration of Section 18

of the 1966 Law before the Royal Court, as it is also true that there

was no express weighing up by the Royal Court of the applicant's

interests - in staying in his shed - as against the interests of the

community in ensuring compliance with the DDP. However, where there

is a clear prohibition on residential development, the Commission

considers that a failure expressly to balance various interests cannot

of itself lead to the conclusion that an interference with the right

to respect for home is not "necessary" in a democratic society. This

is particularly the case where, as here, the applicant was able to, and

did, participate in the inquiry which led to the planning policies at

issue: the applicant was able to air his views both at that early stage

and later, in the planning proceedings proper.

Given the clarity of the prohibition on residential development

in the Developed Glasshouse area, the importance of appropriate

planning policies to development and the applicant's knowledge of the

position, the Commission finds that the interference with the

applicant's right to respect for his home was not disproportionate to

the planning aims being pursued by the Guernsey authorities.

It follows that the authorities did not exceed their margin of

appreciation, and that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint concerning the procedures before the

Guernsey courts;

DECLARES INADMISSIBLE the remainder of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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McGONNELL v. THE UNITED KINGDOM

McGONNELL v. THE UNITED KINGDOM

LEXI