Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28892/95

by McKone Estates Limited

against Ireland

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mr. M.P. PELLONPÄÄ, Acting President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 25 July 1995 by

McKone Estates Limited against Ireland and registered on 6 October 1995

under file No. 28892/95;

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 applicant is a residential development company based in

Dublin and is represented before the Commission by Thomas Montgomery

and Company, solicitors practising in Dublin.

On 14 March 1977 the Minister for Local Government in Ireland

granted planning permission for a development of 455 houses with a

provision for a local shopping centre and a school ("development A")

on 60 acres at Cooldrinagh, Lucan, County Dublin ("the site"). This

permission overruled an earlier refusal of planning permission on

29 July 1976 by Dublin County Council. The planning permission was

subject to a condition that the developer enter into an agreement with

the County of Dublin and the adjoining County of Kildare regarding the

sewage and surface water pipe drainage arrangements including the

disposal of foul sewage through the treatment works at Leixlip in

County Kildare ("the drainage"). The developer was also required to

agree with the two county councils a contribution towards the costs of

the drainage and the cost of providing a public water supply. In

default of agreement the amount of contribution would be determined by

the Minister for Local Government.

On 1 January 1977 the 1976 Planning Act ("the 1976 Act") entered

into force. This established an appeals board (An Bord Pleanala) and

introduced a provision for a withering of planning permissions seven

years from the date such permission was granted.

In November 1977 the applicant purchased the site with the

benefit of the planning permission, intending to carry out

development A.

The applicant experienced considerable difficulty in attempting

to discuss the drainage of the site with either Kildare or Dublin

County Councils. By a letter of 13 July 1977, Kildare County Council

stated that they did not propose to enter into any negotiations with

the applicant concerning drainage. On legal advice the applicant

submitted simultaneous planning applications regarding the drainage,

to Dublin and Kildare County Councils in August 1979. These planning

applications were refused by both Councils, at first instance in

October 1979 and further refused after appeal to An Bord Pleanala on

5 September 1980.

On 24 April 1981, pursuant to the provisions of Section 55 of the

Local Government (Planning and Development) Act 1963 ("the 1963 Act"),

the applicant served on both Kildare and Dublin County Councils a

compensation claim for three million pounds for the loss in value of

the site due to the inability to enforce the planning permission.

On 20 October 1981, the official property arbitrator commenced

a hearing of the claim for compensation against Kildare County Council.

After a three day hearing, and at the request of counsel for Kildare

County Council, a case was stated to the High Court. In a judgment of

24 June 1983 it was held, inter alia, that the applicant had a prima

facie right under Section 24 of the Public Health (Ireland) Act 1878

("the 1878 Act") to require Kildare County Council to grant permission

for the connecting up of the sewer, subject to the imposition of such

terms and conditions as may be agreed, or as may, in default of

agreement, be determined by the Court or by arbitration. Further it was

held that the application for compensation was premature as the

applicant had failed to assert and exhaust the rights open to it under

the 1878 Act.

In the interim, in March 1983, the applicant had submitted

revised planning applications concerning the development and drainage

of the site to both Kildare and Dublin County Councils. Both

applications were refused at first instance in July 1983 and on appeal

on 8 February 1984. The reasons given included a lack of capacity at

the sewage treatment works to cater for the proposed development A.

In conformity with the judgment of 24 June 1983, the applicant

made an application to appoint an arbitrator.

Prior to the commencement of the arbitration, there was an

interlocutory hearing, at which it was held that the appointment of an

arbitrator was precipitate and therefore invalid. The applicant was

advised not to appeal this order, as by the time the appeal could be

heard by the Supreme Court and, if necessary the matter returned to

arbitration, the planning permission would have lapsed in any event,

it being the end of the seven year period.

On 13 March 1984 the planning permission, which had been granted

seven years previously on 14 March 1977, expired in accordance with the

1976 Act.

On 4 April 1985 an award of 12,500 IR£ was made to the applicant

by the Official Arbitrator in respect of the refusal by Kildare County

Council to allow the drainage connection.

In July 1988 five acres of the applicant's land were made subject

to a compulsory purchase order, due to the building of the Leixlip

bypass. In July 1989 Kildare County Council acquired these five acres

by agreement.

In January 1989 the second phase of the Leixlip Treatment Plant

was commissioned, thereby increasing by more than 100% the capacity of

the sewage works.

On 15 December 1989 the applicant sought planning permission for

a residential development containing 252 houses on 40 acres of the site

("development B"). Permission was granted at first instance by Dublin

County Council on 25 April 1990, subject to certain conditions. This

decision was appealed by various third parties and the applicant. On

31 January 1991 a refusal to grant permission was issued by An Bord

Pleanala, stating that the site fell within an area devoted to

agriculture under the County Development Plan 1980, there were no

detailed drainage plans and that development B would interfere with the

use of the aerodrome and the safety of aircraft in the area.

On 30 July 1991 the applicant served on Dublin County Council a

compensation claim under Section 55 of the 1963 Act, for

IR£ 1.75 million, representing the alleged reduction in value of the

site after the refusal of planning permission. The claim was made out

of time and the applicant thus, on 21 November 1991, sought leave to

extend the time limit. The application to the Circuit Court was heard

on 26 May 1992 and an Order extending the time limit by 14 days was

made. This Order was appealed by Dublin County Council to the High

Court, who in turn stated a case to the Supreme Court on 19 May 1993.

The Supreme Court gave judgment on 1 June 1995 and the Order of the

High Court, affirming the Supreme Court judgment, was made on 13 July

1995. The effect of the judgment and the order of the High Court wasto

rule that the applicant had no valid claim under Section 55 of the 1963

Planning Act ("the 1963 Act"), as the relevant parts of this act had

been repealed by the Local Government (Planning and Development) Act

1990 ("the 1990 Act"), prior to the refusal of planning permission on

31 January 1991.

COMPLAINTS

The applicant complains under Article 6 concerning the length of

proceedings. The applicant further complains that there was no

effective remedy in breach of Article 13, in particular no action lay

in negligence against the Minister or the Local Authority and there was

no claim for compensation under the 1963 Act. The applicant considers

it was the subject of discrimination under Article 14 and states that

the refusal of planning permission amounted to a deprivation of the

peaceful enjoyment of property in violation of Article 1 of Protocol

No. 1. The applicant also invokes Articles 16, 18 and 50.

THE LAW

1. The applicant alleges violations of Articles 6, 13, and 14

(Art. 6, 13, 14) of the Convention and Article 1 of Protocol No. 1

(P1-1) in connection with the conditional planning permission relating

to development A. However, the final decision in this connection was

on 4 April 1985, when the applicant was awarded compensation by the

Official Arbitrator. This final decision is more than six months before

the date on which the application was submitted on 25 July 1995.

It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant complains under Article 6 (Art. 6) about the length

of the proceedings concerning development B. 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 within a

reasonable time ..."

The Commission notes that the planning permission for

development B was sought on 15 December 1989, permission was granted

by Dublin County Council on 25 April 1990 and then refused on appeal

by An Bord Pleanala on 31 January 1991. The period of time from first

request to final refusal of planning permission was 13 months. The

applicant commenced compensation proceedings on 30 July 1991 and the

final order of refusal from the High Court (following the Supreme Court

judgment) was on 13 July 1995. The total duration from the application

of planning permission to the final refusal of compensation was of

5 years 7 months. The Commission notes that these proceedings consisted

of hearings by the Circuit Court, the High Court and the Supreme Court

and a final order by the High Court.

In the circumstances, and even assuming that Article 6 (Art. 6)

applies from 15 December 1989, when the applicant applied for planning

permission, to the final refusal of compensation on 13 July 1995, the

Commission does not consider the proceedings exceeded the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly ill-

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

Convention.

3. The applicant complains under Article 1 of Protocol No. 1 (P1-1)

that the refusal of planning permission for development B deprived it

of the peaceful enjoyment of its possessions. Article 1 of Protocol No.

1 (P1-1) provides as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission notes that the applicant applied for planning

permission for development B and this request was refused. The

Commission recalls that, as a general principle, the protection of

property rights ensured by Article 1 of Protocol No. 1 (P1-1) cannot

be used as a ground for claiming planning permission to extend

permitted use of property (see No. 20490/92, Dec. 8.3.94, D.R. 76-A,

p. 108). When the applicant applied for planning permission in

December 1989 planning permission for development A had already lapsed

such that the applicant cannot claim that it was deprived of the right

to build on the land. Even considering the position as at November

1977, when the applicant bought the land with planning permission, it

cannot be said that the applicant acquired an absolute entitlement to

develop as it must have been aware that the 1976 Act provided for

planning permission to wither after seven years. Accordingly the

refusal to grant planning permission for development B did not involve

the removal or alteration of a valid planning permission.

It follows that this part of the application is manifestly ill-

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

Convention.

4. The applicant complains that the site was marked on the

Development Plan of Dublin County Council as agricultural land. The

applicant further complains that the absence of transitional provisions

in the 1990 Act defeated the applicant's claim under the 1963 Act. The

applicant invokes Article 14 (Art. 14).

Article 14 (Art. 14) of the Convention provides 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."

The Commission recalls that in Pine Valley Developments Ltd and

Others v. Ireland (Eur. Court HR, judgment of 29 November 1991,

Series A no. 222, p. 27 para. 64) it was held that there was a

violation of Article 14 in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1), where there was a difference of treatment between two

of the applicants and other holders of permission in the same category.

There is however no such discrimination in the present case: the zoning

of the land as agricultural took place prior to the application for

planning permission and there is no evidence that the applicant was

treated any differently from any other company or individual seeking

planning permission in a similar site.

It follows that this part of the application is manifestly ill-

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

Convention.

5. The applicant complains under Article 13 (Art. 13) that it had

no action in negligence against the Minister or the Local Authority and

no claim for Compensation under the 1963 Act.

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

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment

of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present

case, the Commission has rejected the substantive claims as disclosing

no appearance of a violation of the Convention. For similar reasons,

they cannot be regarded as "arguable". In any event Article 13

(Art. 13) cannot be invoked to require a particular content of the

substantive provisions of civil law.

It follows that this part of the application is manifestly ill-

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

Convention.

6. The applicant also alleges violations of Articles 16, 18 and 50

(Art. 16, 18, 50) of the Convention.

The Commission finds that these complaints do not disclose any

appearance of a violation of the rights and freedoms set out in the

Convention or its Protocols, and that this part of the application must

be rejected in accordance with Article 27 (Art. 27) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M. P. PELLONPÄÄ

Secretary Acting President

to the First Chamber of the First Chamber

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McKONE ESTATES LIMITED v. IRELAND

McKONE ESTATES LIMITED v. IRELAND

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