Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32372/96

by Gerard TIMMER and 't Laakse Hoogh B.V.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 June 1996 by

Gerard TIMMER and 't Laakse Hoogh B.V. against the Netherlands and

registered on 22 July 1996 under file No. 32372/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Dutch national, born in 1937, and

resides in Driel, the Netherlands. He is the director of the second

applicant, a company with limited liability established at Driel. Both

applicants are represented by Ms C.M.A. Delissen-Buijnsters, a lawyer

practising in Arnhem.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

On 30 October 1970, B. was granted a licence under the Nuisance

Act (Hinderwet) to operate a pig farm with a maximum capacity of

200 pigs. A number of conditions were attached to this licence.

In July 1972, B. sold to the first and/or second applicants a

plot with a building which had until then been used as a hotel-

restaurant with a private home. This plot is directly adjacent to the

plot on which B. exploits the pig farm. As from the acquisition of this

building, the applicants used it as a private home and office.

By decision of 26 October 1993, the Mayor and Aldermen

(Burgemeester en Wethouders) of the municipality of Heteren rejected

the second applicant's request to attach further conditions

(aanvullende voorschriften) to B.'s licence under the Nuisance Act.

The Mayor and Aldermen found, inter alia, that, although the

distance norms in the pamphlet "Cattle Farming and Nuisance Act"

(brochure "Veehouderij en Hinderwet") were not met and nuisance caused

by stench was thus plausible, the licence holder could not be expected

to make expensive arrangements, in particular since it was not at all

certain that these arrangements would lead to the results desired.

The applicants filed an appeal with the Administrative Law

Division of the Council of State (Afdeling Bestuursrechtspraak van de

Raad van State), which led to a decision of 25 March 1994 by the

President of the Administrative Law Division quashing the decision of

26 October 1993.

The Mayor and Aldermen and B., as an interested party, both filed

an objection (verzet) against the President's decision with the full

bench of the Administrative Law Division.

By letter of 27 December 1994, the Mayor and Aldermen informed

the applicants of their decision to abandon the proceedings before the

Administrative Law Division, as certain measures aimed at limiting the

nuisance caused by stench had to be taken. They stated that they

intended to prohibit the keeping of pigs in the pigsty closest to the

applicants' house and to decrease the maximum number of pigs allowed

by 30. The applicants filed an appeal against this decision with the

Administrative Law Division.

On 20 July 1995 the full bench of the Administrative Law Division

found the objections lodged against the President's decision of

25 March 1994 well-founded, thus rendering the President's decision

null and void.

On 20 October 1995, an oral hearing on the applicants' appeals

against the decisions of 26 October 1993 and 27 December 1994 was held

before the full bench of the Administrative Law Division during which

the representatives of the applicants, the Mayor and Aldermen and B.

made oral submissions.

In its decision of 13 December 1995, the Administrative Law

Division rejected the appeal against the decision of 26 October 1993.

It noted that the Mayor and Aldermen had taken the distance norms

stated in the pamphlet Cattle Farming and Nuisance Act as a standard

in their assessment of the case, which the Administrative Law Division

considered an acceptable approach. It further noted that it had not

been argued or appeared that the application of the norms in this

pamphlet would result in an incorrect assessment of nuisance caused by

stench.

After having considered the written and oral submissions made

before it, the Administrative Law Division held that the agricultural

destination of the area at issue was beyond doubt and that this

destination was not affected by the presence of buildings with a non-

agricultural use like the applicants' premises. Consequently, the Mayor

and Aldermen correctly applied the relevant norms contained in the

pamphlet, according to which the minimum distance between an

installation and a smell-sensitive object must be 50 metres. In the

present case, where it concerned 200 pigs, the minimum distance must

be 63 metres according to the pamphlet.

The Administrative Law Division considered that, on grounds of

constant case-law, protection against nuisance caused by stench must

be offered in respect of habitation. It held that the distance at issue

was to be calculated from the outside wall of the house of the second

applicant and the outside wall of the most nearby pigsty.

It was found established that the distance between the house and

the pigsty was smaller than the minimum distance according to the norms

in the pamphlet. The Administrative Law Division considered it,

therefore, necessary to examine the Mayor and Aldermen's reasons for

rejecting the applicants' request.

After having considered the various oral and written submissions

on this point, the Administrative Law Division accepted the opinion of

the Mayor and Aldermen that the case did not concern an unacceptable

situation from an environmental point of view. It held that in such a

situation an order to make drastic stench-limiting arrangements was not

necessary. According to the pamphlet, the making of such arrangements

could be expensive whereas they could not always prevent the occurrence

of nuisance.

Although the Administrative Law Division did not exclude that the

expenses for making such arrangements were not as high as alleged in

the proceedings, it concluded that compliance with the applicants'

request would entail the making of arrangements which could not be

required from the licence holder and, consequently, accepted the

rejection of the second applicant's request by the Mayor and Aldermen.

Also by decision of 13 December 1995, the Administrative Law

Division rejected the applicants' appeal against the decision of

27 December 1994. In this decision the Administrative Law Division

limited itself to referring to its findings in its decision of the same

date on the applicant's appeal against the decision of 26 October 1993.

It further held that no facts or circumstances had appeared on the

basis of which it should take a different decision in the present case.

The Administrative Law Division therefore rejected the appeal as

ill-founded.

COMPLAINTS

1. The applicants complain under Article 6 para. 1 of the Convention

that they did not receive a fair hearing in the second set of

proceedings before the Administrative Law Division in that it did not

give any reasons for its rejection of the applicants' appeal.

2. The applicants complain under Article 8 of the Convention of the

authorities' failure to order appropriate measures in order to limit

the nuisance caused to them by B.'s nearby installation.

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that the Administrative Law Division rejected their appeal

against the decision of 27 December 1994 by the Mayor and Aldermen

without stating any reasons.

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

relevant, reads:

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

everyone is entitled to a fair ... hearing ... by a ... tribunal

established by law."

The Commission must first determine whether Article 6 para. 1

(Art. 6-1) applies to the proceedings at issue in the present case,

notably whether there was a dispute over a "right" which can be said,

at least on arguable grounds to be recognised under domestic law. The

dispute must be genuine and serious and its outcome must be directly

decisive for the right in question. It must furthermore be ascertained

that the right in question is "civil" in nature within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR,

Neigel v. France judgment of 17 March 1997, Reports 1997-II, No. 32,

paras. 38 and 39).

The Commission notes that the Administrative Law Division

acknowledged that under Dutch law there is a right to be protected

against nuisance caused by stench. There was, therefore, a dispute over

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

Convention.

As to the question whether this right can be regarded as "civil"

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

Commission considers that the right to be protected against

environmental nuisance is directly linked to the applicants' enjoyment

of their property, i.e. a private home and office. Furthermore,

although the applicants have not stated that they intended to sell the

real property at issue, the Commission does not exclude that the

existence of environmental nuisance could affect the value of this part

of the applicants' patrimony. The Commission also recalls that

proceedings concerning the grant of a licence under the Nuisance Act

have been held to determine a civil right within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention as regards the person requesting

the issuance of such a licence (cf. Eur. Court HR, Benthem v. the

Netherlands judgment of 23 October 1985, Series A no. 97, p. 16, paras.

34-36).

Although the licence holder B. was only involved as an interested

party in the proceedings at issue, it could be argued that these

proceedings did in fact have a certain bearing on B.'s civil rights and

obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention in that the outcome of the proceedings would, to a certain

extent, be decisive for the question whether the conditions attached

to the licence would remain unaltered or rendered more severe.

However, the Commission does not find it necessary to determine

this question in the present case, as this complaint is in any event

manifestly ill-founded for the following reasons.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention obliges the courts to give reasons for their judgments, but

the question whether a court has failed to fulfil the obligation to

state reasons, deriving from Article 6 (Art. 6), can only be determined

in the light of the circumstances of the case (cf. Eur. Court HR, Ruiz

Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12,

para. 29; and Hiro Balani v. Spain judgment of 9 December 1994, Series

A no. 303-B, p. 29, para. 27).

The Commission notes that the proceedings at issue concerned the

question whether or not the conditions attached to the licence under

the Nuisance Act granted to B. should be rendered more severe and, if

so, in which manner and to what extent. The outcome of both sets of

proceedings was dependent on the Administrative Law Division's

assessment of facts and circumstances, which were identical in both

sets of proceedings.

In these circumstances, the Commission accepts that the substance

of both sets of proceedings was sufficiently similar to allow the

Administrative Law Division, in its decision of 13 December 1995 on the

appeal against the decision of 27 December 1994, to refer to its

findings and the pertaining reasons stated in its decision on the

appeal against the decision of 26 October 1993, which was rendered by

the Administrative Law Division on the same day and which concerned de

facto the same parties. Moreover, the Administrative Law Division did

examine the separate question whether or not there were facts or

circumstances on the basis of which it should reach a different finding

as regards the appeal against the decision of 27 December 1994 and held

that this was not the case.

The Commission, therefore, concludes that the reasoning contained

in the Administrative Law Division's decision on the appeal lodged

against the decision of 27 December 1994 was sufficient for the

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

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicants complain under Article 8 (Art. 8) of the

Convention of the authorities' failure to order appropriate measures

in order to limit the nuisance caused by B.'s nearby installation.

Article 8 (Art. 8) of the Convention, insofar as relevant, reads:

"Everyone has the right to respect for his private and family

life, his home and his correspondence."

The Commission recalls that severe environmental pollution may

affect individuals' well-being and prevent them from enjoying their

homes in such a way as to affect their private and family life

adversely, without, however, seriously endangering their health (cf.

Eur. Court HR, López Ostra v. Spain judgment of 9 December 1994, Series

A no. 303-C, p. 54, para. 51).

The Commission notes in the first place that the second applicant

is a company with limited liability. The question therefore arises

whether a legal person as opposed to a natural person, like the first

applicant, can derive any rights from Article 8 (Art. 8) of the

Convention, which seeks to protect the personal sphere of individuals

(cf. No. 34614/97, Dec. 7.4.97, D.R. 89, p. 163).

The Commission, however, does not find it necessary to determine

this question as this part of the application is in any event

manifestly ill-founded for the following reasons.

The Commission accepts that the nuisance at issue may affect the

rights protected by Article 8 (Art. 8) of the Convention. The present

case hinges on the question whether the authorities were under a duty

to render the conditions attached to B.'s licence under the Nuisance

Act more strict.

In determining the question whether a State falls short of its

positive duties under Article 8 (Art. 8) of the Convention, regard must

be had to the fair balance that has to be struck between the competing

interests at issue and in any case the State enjoys a certain margin

of appreciation (cf. Eur. Court HR, Ahmut v. the Netherlands judgment

of 28 November 1996, Reports 1996-VI, No. 24, para. 63).

The Commission notes that the licence at issue was granted two

years before the applicants acquired the plot and buildings thereon

from B. The Commission further notes that the authorities considered

that the occurrence of nuisance caused by stench was plausible given

the distance between B.'s installation and the applicants' private home

and office.

However, after having found that the applicants' home and office

found themselves in an agricultural area and that the nuisance

complained of did not concern an unacceptable situation from an

environmental point of view and after having balanced the costs B.

would have to incur in making the arrangements suggested by the

applicants against the uncertain prospects of success of these

arrangements, the Administrative Law Division held that such

arrangements could not be required from B.

In these circumstances, the Commission cannot find that the

balance struck by the Administrative Law Division between the

respective interests at stake is incompatible with the Netherlands

Government's positive obligations under Article 8 (Art. 8) of the

Convention.

It follows that this part of the application must be rejected for

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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TIMMER AND 'T LAAKSE HOOGH B.V. v. THE NETHERLANDS

TIMMER AND 'T LAAKSE HOOGH B.V. v. THE NETHERLANDS

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