AS TO THE ADMISSIBILITY OF

                      Application No. 28981/95

                      by Anthony and Elizabeth CHILD

                      against Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 14 February 1995

by Anthony and Elizabeth CHILD against Ireland and registered on

26 October 1995 under file No. 28981/95;

     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 applicants are Irish nationals. They were born in 1929 and

are currently resident in London. The facts of the case, as submitted

by the applicants, may be summarised as follows.

     In 1976 the applicants bought a 25 acre site in County Wicklow

and on 13 October 1986 they applied to the relevant County Council for

planning permission to build a house on the site. Further to

representations from the applicants, five members of the County Council

tabled a motion that a resolution be passed by the County Council

directing the County Manager to grant planning permission.

     At a meeting of the County Council on 10 November 1986 the County

Manager recommended refusal of planning permission due to the site's

location in an elevated position in an area adjoining a main tourist

route designated by the County Plan as an area of high amenity, because

the entrance to the house would constitute a traffic hazard and

endanger public safety and due to the serious danger of septic tank

effluent gaining access to a nearby reservoir which was a major source

of public water supply. A decision was deferred pending an on-site

meeting between the relevant five members of the County Council who

supported the motion, the County Manager and the County Engineer. After

that meeting further information was requested from the applicants by

letter dated 27 November 1986 in relation to sewage disposal and this

information was submitted on 12 December 1986. The applicants were also

required to sink a trial hole on the site and, having inspected this

hole (with a view to assessing percolation on the site), the County

Medical Officer reported that development on the site would create a

serious danger of septic tank effluent entering the nearby river which

led into a reservoir.

     At the County Council meeting on 12 January 1987, the County

Engineer also spoke against granting planning permission due to

insufficient percolation and proximity to the river feeding the

reservoir. The County Manager stated that three separate reports

indicated that the application should be refused and that he would be

acting irresponsibly if he made an order granting planning permission.

The Director of Community Care and Dublin Corporation were also against

granting planning permission and these opinions were also outlined to

the meeting. The County Council members had the reports of the County

Engineer and the County Medical Officer before them. However, the

County Council members resolved, by 10 votes to 7, to direct the County

Manager to grant planning permission.

     Having taken legal advice, the County Manager in a letter dated

29 January 1987 notified the County Council members of his refusal to

give effect to their resolution. He referred to the technical reports

and advice all of which were against granting planning permission and

to the fact that no competent technical advice offering an alternative

view was brought before him. He again pointed out that he would be

acting irresponsibly if he allowed planning permission. The applicants

did not appeal the decision of the County Manager to An Bord Pleanála,

the Irish planning appeals board and they claim that they did not

receive the registered letters notifying them of the decision of the

County Manager.

     The applicants then engaged their own expert engineer whose

report dated 25 May 1987 stated that the site was suitable for septic

tank effluent. Correspondence between the applicants' engineer and the

County Council ensued in an effort on the applicants' part to obtain

planning permission but this correspondence ceased in or around the end

of 1989 without any change in the planning position.

     The applicants then commenced building a house on the site and

they informed the County Manager by letter dated 17 May 1990 that they

had started building. The County Manager replied confirming that such

building was unauthorised in light of his previous decision. Since the

building continued, proceedings were issued in 1990 by the County

Council as a result of which the applicants were obliged to stop

construction. The applicants' application for an order from the County

Council to retain the building, which building had been already largely

completed, was refused on 27 August 1991. The applicants' appeal to An

Bord Pleanála against the refusal of the retention order was rejected

on 25 March 1992. The reasons given for the refusal of the appeal were

the scenic nature of the area, the proximity of the septic tank

percolation area from the river (which river fed into an important

reservoir for the area) and the traffic hazard which would be caused

by an entrance from a residence with limited visibility onto a narrow

road.

     On 19 February 1993 the applicants issued judicial review

proceedings in the High Court claiming that the County Manager's

decision to refuse planning permission was invalid as he failed to

implement the County Council members' resolution. In May 1994 the

County Manager offered to settle the matter, inter alia, by granting

planning permission but the applicants would be responsible for their

own legal costs to date. The applicants refused the offer.

     While the applicants were legally represented from at least late

1989 until April 1993 (including for the drafting of the Statement of

Claim in the judicial review proceedings), they represented themselves

during the hearing before the High Court. The High Court gave its

judgment on 20 January 1995. The court rejected the applicants' claim

that they had not received any registered notices of the County

Manager's decision of 29 January 1987. The court went on to state that,

according to the jurisprudence, the County Manager was entitled to

ignore an invalid resolution of the members of the County Council

without applying to court to have the relevant resolution quashed.

Accordingly, the question to be decided was the validity of the

members' resolution of 12 January 1987. The High Court noted that,

while County Council members are not bound by the advices of the County

Engineer and Medical Officer, they must have some clear basis for not

following such persons' advice by way of, for example, an expert's

opinion supporting their position.

     The High Court found that the members had acted ultra vires and

that the resolution of the County Council was invalid because the

County Council members did not have any such clear basis for ignoring

the advice against granting planning permission given by, inter alia,

the County Council's technical experts and because they did not take

into account the proper planning and development of the site. In

addition, the court found that the members had also not taken the four

previous refusals of planning permission for the same site into account

(two of which refusals had been upheld on appeal by An Bord Pleanála

and all of which refusals would have been a matter of public record).

The County Manager's decision was accordingly upheld. The High Court

granted the Council an injunction restraining further building but

allowing the applicants to complete the roof of the house. On

20 February 1995 the applicants lodged an appeal against the High Court

decision to the Supreme Court which appeal does not yet appear to have

been heard.

COMPLAINTS

     The applicants complain about the refusal of planning permission,

about the actions and motivations of the County Manager and about the

High Court judge whom they claim did not take any notice of their

evidence and submissions. They invoke Article 8 of the Convention.

THE LAW

     The applicants complain about the refusal of planning permission.

They submit that the County Manager had no power to overrule the

decision of the members of the County Council, that, in refusing the

application for planning permission, the County Manager was motivated

by hostility towards the applicants and that he would not therefore

appear in court to answer the allegations against him. They also submit

that the High Court judge did not take any notice of their evidence

during the High Court hearing.

     Although the applicants did not appeal the County Manager's

decision of 29 January 1987 to An Bord Pleanála and that their appeal

to the Supreme Court has not yet terminated, the Commission does not

find it necessary to consider whether the applicants have exhausted

domestic remedies as required by Article 26 (Art. 26) of the

Convention, because the application is, in any event, inadmissible for

the reasons set out below. Though the applicants invoke Article 8

(Art. 8) of the Convention, the Commission is of the opinion that the

applicants' complaints (apart from the complaint in relation to the

High Court judge) are more appropriately considered under Article 1 of

Protocol No. 1 (P1-1) and more specifically under the second paragraph

of that Article. Article 1 of Protocol No. 1 (P1-1), insofar as

relevant, reads 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 ... .

     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 ... ".

     The Commission recalls that a prohibition on building a house on

a plot which one owns constitutes a control of the use of property

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

(P1-1) and that in order for such control to be justified it must be

lawful, it must pursue a legitimate aim in the public interest and the

means employed must be proportionate to the aim pursued (see, for

example, No. 10911/84, Dec. 7.7.86, D.R. 48 p. 191).

     The Commission considers that the refusal of planning permission

by the County Manger amounted to a control of the use of the

applicants' property within the meaning of Article 1 of Protocol 1

(P1-1). As to the lawfulness of the County Manager's refusal of

planning permission, the Commission notes the applicants' claim that

the County Manager was not entitled to take the action he did. However,

the Commission also notes that the purpose of the judicial review

proceedings before the High Court was precisely to challenge the

validity of the County Manager's action. The High Court clearly

indicated that there was a basis in law for the County Manager's

refusal to comply with the resolution of the members of the County

Council, that the decision of the members was invalid and that the

action of the County Manager was, accordingly, valid.

     As to the legitimacy of the aim of the refusal, the applicants

submit that the reason for the County Manager's refusal was hostility

against them. However, the Commission notes the expert technical

advice, opinions and reports from the County Engineer, the County

Medical Officer, Dublin Corporation and from the Director of Community

Care against granting planning permission. Though the rejection by An

Bord Pleanála of the appeal against the refusal of a retention order

took place after the County Manager's decision on 29 January 1987, the

Commission notes that the reasons for that board's decision mirrored

the objections of the County Manager which he outlined to the County

Council meeting on 10 November 1986.

     The Commission also recalls that four previous applications made

by others for planning permission for the same site had been refused

before the applicants bought the site and that appeals against two of

those refusals were also rejected by An Bord Pleanála. While it is

noted that the County Manager appears to have offered to settle the

matter by granting planning permission in May 1994, the Commission does

not consider this indicative of bad faith on the part of the County

Manager - the County Manager would still have been in a position to

attach specific construction conditions to that offer and, in any

event, it is appreciated that the County Manager was faced with a

situation which had been ongoing for almost eight years, with the

existence of a house on a site which had been practically completed and

with a further set of expensive legal proceedings ahead.

     Accordingly, the Commission considers that aims of the control

were the maintenance of a scenic environment, public health

(percolation of effluent into a reservoir) and public safety (traffic

hazards) and that those aims are legitimate within the meaning of

Article 1 of Protocol 1 (P1-1). Insofar as the applicants argue that

the County Manager's refusal to "come to court" demonstrates his

alleged hostility and reluctance to account for his adopted position

and even assuming that the County Manager was so reluctant, the

Commission notes that the applicants did not apply at any time to the

court, either during the proceedings commenced against them in 1990 or

by them in November 1993, for a witness summons in order to ensure the

County Manager's appearance to give evidence.

     As regards the proportionality of the means employed, the

Commission notes that it was only after the refusal of planning

permission by the County Manager that the applicants commenced

construction on the site. Insofar as the applicants submit that they

commenced building because of non-receipt of the registered notices of

the County Manager's decision in January 1989, the rejection by the

High Court of the claim by the applicants of such non-receipt is noted.

The Commission also notes the applicants' engagement of an expert

engineer in 1987 and the purpose of the correspondence between that

engineer and the County Council from 1987 and 1989 none of which would

have been necessary had the applicants been granted planning

permission. Accordingly, the Commission considers that the applicants

were aware of the refusal by the County Manager of planning permission

well in advance of their decision to commence building in May 1990.

Furthermore, since the four previous refusals of planning permission

for the site were a matter of public record, the applicants were in a

position to assess their chances of being granted planning permission

even before they decided to buy the site. In such circumstances, the

Commission considers that the refusal to grant planning permission to

the applicants was proportional to the legitimate aims involved.

     Accordingly, the Commission concludes that the refusal of

planning permission to the applicants is justifiable under Article 1

of Protocol 1 (P1-1).

     The applicants also complain that the High Court judge did not

listen to their evidence or submissions during the High Court hearing.

While the applicants do not invoke any particular Article of the

Convention in this respect, the Commission has considered this

complaint under Article 6 (Art. 6) of the Convention. However, in light

of the contents of the judgment of the High Court of 20 January 1995,

the Commission does not consider that the applicants have substantiated

this submission, the High Court judge referring as appropriate to the

applicants' positions on the matters at issue.

     In such circumstances, the Commission considers that the

applicants' complaints are 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.F. BUQUICCHIO                               M.P. PELLONPÄÄ

     Secretary                                Acting President

to the First Chamber                         of the First Chamber