Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22245/93

by M.J.C. and J.E.C.

against the United Kingdom

The European Commission of Human Rights (First Chamber)

sitting in private on 6 April 1994, the following members being

present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 12 May 1993

by M. J. C. and J. E. C. against the United Kingdom and

registered on 16 July 1993 under file No. 22245/93;

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 a husband and wife, born in 1957 and 1959

respectively. They live in Whitstable in Kent, and are

represented before the Commission by Mr. G.J. Hewitt, solicitor,

of Peterborough. The facts of the case may be summarised as

follows:

The particular circumstances of the case

In 1986 the applicants bought a piece of land in Kent. It

had the benefit of a 1961 outline planning consent for the

demolition of one house and the erection of a new dwelling on the

same site. The house had been demolished in 1963, but no house

had been built. The applicants paid £14,500 for the land. A

dispute ensued between the applicants and the local authority

about the validity of the 1961 planning permission, and at the

same time the applicants applied for planning permission for a

new house. The application was refused, but in June 1987 the

authority notified the applicants that the original permission

was regarded as valid.

In November 1987 the local authority made an order under

Section 45 of the Town and Country Planning Act 1971 (TCPA),

revoking the 1961 permission. The revocation order was

confirmed, after a public enquiry, by the Secretary of State on

17 August 1989.

The applicants gave notice of a claim for compensation under

Section 164 of the TCPA. On 27 March 1991 the Lands Tribunal

gave an interim award of £108,626.84, consisting of £106,750

depreciation on value of the land and £1,876.84 abortive design

expenditure. The member of the Lands Tribunal valued the land

with the benefit of the 1961 permission at £115,000, and without

the permission at £8,250. Applying the assumption in Section

164(4) TCPA, that is, if one were to assume that the house which

had been demolished in 1963 were still standing, he put the value

of the land after the revocation at £70,000. In such a case, the

compensation would be £45,000 (£115,000 less £70,000).

The local authority appealed to the Court of Appeal which,

on 20 March 1992, gave judgment in the authority's favour. The

Vice-Chancellor pointed out that the authority's argument

involved:

"...as a necessary corollary, the proposition that in

assessing compensation for the revocation of permission to

demolish and rebuild a house, the valuer must assume that

permission to rebuild the house would be granted. On its

face the proposition seems bizarre."

The House of Lords, to which the applicants appealed (with

leave), also found in the local authority's favour. Lord Oliver

of Aylmerton, giving the judgment of the House, recalled that the

terms of Section 164(4) were mandatory. He also referred to the

principle that an intention to take away the property of a

subject without giving him a legal right to compensation is not

to be imputed to the legislator unless expressed unequivocally.

He found that the terms of Section 164(4) were entirely

unequivocal. He accepted that the

applicants had suffered hardship in being deprived of a

substantial part of the value represented by the revoked

permission, but that could not affect the proper way to construe

the statute.

Lord Oliver referred to the legislative history of Section

164(4). The precursor to Section 164(4) in the Town and Country

Planning Act 1947 was perfectly logical in the context of its

initial drafting, as compensation for depreciation in the value

of land in consequence of the revocation of planning permission

was only payable if a development charge had been paid by the

landowner in respect of the development covered by the revoked

permission. No development charge was payable in respect of

existing use developments falling within Schedule 3 to the 1947

Act (replaced by Schedule 8 to the TCPA). Accordingly, it had

been necessary to provide in the calculation of the amount of

depreciation a base value which assumed the existence of a

permission for existing use development. Development charges had

been abolished in 1953 and 1954, but the provision for

compensation was only amended by deletion of the reference to

development charges: what became Section 164(4) was expressly re-

enacted. Lord Oliver could not, in such circumstances, accept

an argument that the old provision had not been removed and that,

shorn of its initial context, it had taken on a meaning it was

never intended to have. He concluded:

"... [it is impossible to escape the conclusion] that the

clear purpose of the legislature was to limit the amount of

compensation payable for depreciation due to a revocation

of planning permission by fixing a base value for the land

in all cases on the footing that planning permission for

any class of Schedule 8 development would be granted. That

must include, however arbitrary it may seem, even

development of that very class which was the subject matter

of the revoked permission.

The conclusion is not one which I embrace with any

enthusiasm and it may well be that the particular

circumstance of the revoked permission being the very

permission comprehended in the statutory assumption was not

one which the legislature foresaw as ever likely to occur.

But, whilst this provides a sound reason for the hope ...

that Parliament may look again at ... 'an anachronistic

relic', it cannot provide an avenue for escape from the

clear and express words of the Section. I would dismiss

the appeal."

The applicants accordingly received compensation of £45,000.

Relevant domestic law

Section 45 TCPA permits a local planning authority to revoke

or modify planning permission, in whole or in part, "[i]f it

appears to the local planning authority, having regard to the

development plan and to any other material considerations, that

it is expedient to revoke or modify ...", subject to certain

conditions. In particular, the conditions require confirmation

of the order by the Secretary of State.

As to compensation, Section 164(1) TCPA provides for

compensation to be paid where planning permission is revoked or

modified under Section 45 TCPA.

Section 164(4) TCPA provides for compensation to be

calculated on the basis that it is assumed "that planning

permission would be granted for development of any class

specified in Schedule 8". Schedule 8 refers to "the rebuilding

... of any building which was inexistence on [1 July 1948]; the

rebuilding as often as occasion my require on any building

erected after [1 July 1948] which was in existence at a material

date; ...", subject to certain conditions.

COMPLAINTS

The applicants allege a violation of Article 1 of Protocol

No. 1. They state that they have been denied the compensation

to which they were entitled at law because of a manifest error

in the legislation. They point out that Section 164(4) was

intended to protect the interests of a landowner and to ensure

that, if planning permission were revoked, the owner would retain

the right to rebuild a house without a development charge, and

that the possibility of a local authority revoking planning

permission to rebuild after demolition of the first house but

before erection of the new house was not intended by the

legislator.

The applicants accept that the price they paid for the plot

was relatively low because of some uncertainty as to the validity

of the 1961 planning permission, but point out that they did

eventually establish that the permission was valid.

The applicants also allege a violation of Article 13 of the

Convention. They submit that the failure to amend the 1947

provisions after the abolition of the development charge has

deprived the applicants of the remedy to which they would

otherwise be entitled and which Parliament intended them to have.

THE LAW

1. The applicants allege a violation of Article 1 of Protocol

No. 1 (P1-1) to the Convention. Their complaint relates not to

the revocation of the planning permission as such, but to the way

in which compensation to which they were entitled was calculated

in this case. 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 applicants bought their land

in 1986 with the benefit of the planning permission which had

been granted in 1961. Although there was dispute as to the

validity of that permission, and although the applicants

unsuccessfully applied for a fresh grant of planning permission,

the 1961 permission was the subject matter of the revocation of

November 1987 which was eventually confirmed by the Secretary of

State on 17 August 1989. In these circumstances the Commission

has no reason to doubt that the applicants' rights under Article

1 of Protocol No. 1 (P1-1) were thereby interfered with, and thus

the question of whether the applicants received adequate

compensation itself falls within the scope of the provision.

The Commission finds that the interference in question was

not a formal expropriation of the applicants' property, nor was

it a de facto deprivation. One aim of planning legislation is

to prevent undesirable development by controlling the use to

which property is put. Whilst the value of the applicants'

property was affected by the revocation of the planning

permission, the reduction in value was as a result of the new

limits on the control of the property.

Accordingly, the interference in the present case must be

considered as a control of the use of property falling within the

scope of the second paragraph of Article 1 (Art. 1-2) (cf. Eur.

Court H.R., Pine Valley and others judgment of 29 November 1991,

Series A no. 222, ("Pine Valley judgment"), p. 25, para. 56).

The Commission is not required to consider the lawfulness

and purpose of the revocation of the planning permission as the

applicants complain of the compensation provisions rather than

the revocation (and have accordingly submitted no documentation

in this respect) and in any event they have not complied with the

requirements of Article 26

(Art. 26) of the Convention in that they did not challenge the

revocation in the High Court.

The Commission must, however, determine in the context of

the proportionality of the interference, whether the compensation

provisions in the present case were such as to render the

interference disproportionate.

The Commission first recalls that even where total

deprivation of possessions is at issue, under the second sentence

of the first paragraph of Article 1, Article 1 (Art. 1-1) does

not guarantee a full right to compensation in all circumstances

(Eur. Court H.R., James and Others judgment of 28 February 1986,

Series A no. 98, p. 36, para. 54). Compensation terms are,

however, material in assessing where the contested legislation

respects a fair balance between the various interests involved

(ibid.).

The Commission recalls that the applicants bought land with

the benefit of a 1961 planning permission in 1986. They paid

£14,500 for it, and accept that the price was relatively low

given the uncertainty as to the validity of the planning

permission. At the end of the compensation proceedings, they

were awarded compensation of £45,000. Whilst it is true that the

Lands Tribunal initially awarded a considerably larger sum, it

is plain from the judgments of the Court of Appeal and the House

of Lords that the Lands Tribunal did not have the statutory power

to award that higher amount, because of the anomaly in the Town

and Country Planning Act 1971 about which the applicants

complain.

Notwithstanding the reasons that led to the "bizarre"

compensation provisions which were applied in this case, the

Commission finds that the compensation actually paid to the

applicants was not so inadequate that it could be said that a

fair balance has not been struck in this case.

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.

2. The applicants also allege a violation of Article 13 (Art.

13) of the Convention.

The Commission has declared inadmissible the applicants'

claims under Article 1 of Protocol No. l (P1-1) as being

manifestly ill-founded. It also finds that those claims are not

"arguable" within the meaning of that term ascribed to it by the

European Court of Human Rights (cf., Eur. court H.R., Boyle and

Rice judgment of 27 April 1988, Series A no. 131, p. 23, para.

24).

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.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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M.J.C. AND J.E.C. v. THE UNITED KINGDOM

M.J.C. AND J.E.C. v. THE UNITED KINGDOM