Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15596/89

by Allegonda VAN DER SLOOT and others

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 22 June 1989 by

Allegonda VAN DER SLOOT and others against the Netherlands and

registered on 10 October 1989 under file No. 15596/89;

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 15 inhabitants of Boxtel, 3 inhabitants of

Vught, 1 inhabitant of Sassenheim, 1 inhabitant of Best, 1 inhabitant

of Tilburg, an environmental association with its registered seat in

Den Dungen and a residence association with its registered seat in

Boxtel, the Netherlands. Their names are appended (Appendix I).

Before the Commission the applicants are represented by Mr.

P.A.P.J. van der Sloot, a lawyer practising in Boxtel.

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

summarised as follows.

On 24 May 1973 the Municipal Council (Gemeenteraad) of Boxtel,

departing from the existing zoning plan, adopted the zoning plan

"Stapelen", in which a road was planned through the recreational and

scenic nature area "De Vorstakkers". Following objections by some of

the applicants, the Crown, by Royal Decree (Koninklijke Besluit) of 11

August 1976, refused to approve the part of the zoning plan which

concerned that road.

On 23 May 1984 the Municipal Council of Boxtel, after having

considered the applicants' objections concerning, inter alia, expected

pollution, noise and stench, adopted the zoning plan "Zuidelijke

Hoofdweg", in which again a road was planned through "De Vorstakkers".

After having considered the applicants' objections against this new

plan, the Provincial Executive (Gedeputeerde Staten) of Noord-Brabant

approved the new zoning plan in its decision of 27 March 1985. The

applicants subsequently appealed to the Crown.

In the proceedings before the Crown, the Administrative

Litigation Division of the Council of State (Afdeling geschillen van

bestuur van de Raad van State) advised the Crown on 27 July 1987 and

18 April 1988 to quash the decision of 27 March 1985 by the Provincial

Executive and to withhold approval of the zoning plan.

The Crown, in its Royal Decree of 28 December 1988, partially

quashed the decision of the Provincial Executive, but the plan for the

road was upheld.

In order to start the construction of the road, pending the

approval of the entire zoning plan "Zuidelijke Hoofdweg", so-called

anticipation proceedings were started.

By decision of 18 March 1986 the Provincial Executive of Noord-

Brabant granted the Municipal Executive (Burgemeester en Wethouders)

of Boxtel a declaration of non-objection (verklaring van geen bezwaar)

concerning the first construction phase of the road. Some of the

applicants filed objections against this decision, which the Provincial

Executive rejected on 16 September 1986. These applicants subsequently

appealed to the Judicial Division of the Council of State (Afdeling

Rechtspraak van de Raad van State).

By decision of 6 May 1986 the Municipal Executive of Boxtel, on

the basis of the above declaration of non-objection, granted the

Municipality of Boxtel an exemption from the conditions of the zoning

plan in force concerning the construction of a specific section of the

road.

The objections by some of the applicants against this exemption

were rejected by the Municipal Executive of Boxtel on 15 April 1987.

These applicants subsequently appealed to the Judicial Division.

The Judicial Division joined the appeals against the decisions

of 16 September 1986 and 15 April 1987 and on 26 February 1990 quashed

both decisions. The Judicial Division held, inter alia, that the

authorities at issue, after having balanced the interests involved,

could not reasonably have reached their decisions. The Judicial

Division considered that, at the time these decisions were taken, there

were serious doubts on the Crown's approval of the proposed zoning

plan, taking into account that, in respect of the road, it was quite

similar to the "Stapelen" zoning plan, the approval of which had been

refused by the Crown on 11 August 1976.

The Municipality of Boxtel had, with a view to the construction

of the road, also started expropriation proceedings against three of

the applicants. The expropriation was pronounced by the Regional Court

(Arrondissementsrechtbank) of 's-Hertogenbosch by judgment of 2 October

1987. On appeal, the Supreme Court (Hoge Raad) in its decision of 25

May 1988 quashed the judgment of the Regional Court and referred the

case back to the Regional Court.

By judgment of 10 November 1989 the Regional Court of 's-

Hertogenbosch refused the request for expropriation by the Municipality

of Boxtel.

On 10 September 1990 the Municipal Council of Boxtel, upon a

proposal by the Municipal Executive, decided to abandon the plans for

the construction of the road at issue and to end all related

proceedings. The Municipal Council subsequently started proceedings in

order to revoke the Royal Decree of 28 December 1988, which proceedings

are still pending.

COMPLAINTS

The applicants originally complained under Article 6 para. 1 of

the Convention that the Crown, in the determination of their civil

rights and obligations, was not an independent and impartial tribunal,

that the reasonable time had been exceeded as the proceedings at issue

started already in 1973 and the outcome was still not clear and that

the principle of "ne bis in idem" had not been respected in that the

proceedings on the plan of the road were re-opened in the second set

of administrative proceedings on the zoning plan.

Following the Municipality's decision of 10 September 1990 to

abandon the plans for the construction of the road and to end all

related proceedings, the applicants have maintained their complaint

concerning the length of the proceedings, including the legal costs

involved. They acknowledge that they could claim compensation but

submit that they would thereby risk further lengthy proceedings.

THE LAW

The applicants originally complained under Article 6 para. 1

(Art. 6-2) of the Convention that their civil rights and obligations

have not been determined within a reasonable time by an independent and

impartial tribunal and that the principle of "ne bis in idem" has not

been respected.

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

relevant, provides as follows:

"In the determination of his civil rights and obligations

(...), everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

The Commission observes that the applicants were involved in

proceedings concerning a zoning plan envisaging the construction of a

road.

The Commission notes under Article 25 (Art. 25) of the Convention

that on 10 September 1990 the Municipality of Boxtel abandoned its

plans for the construction of the road at issue and all related

proceedings, but that so far no final decision to revoke the Royal

Decree of 28 December 1988 has been taken.

The Commission further observes in respect of Article 26

(Art. 26) of the Convention that the applicants have not sought

compensation for the costs they incurred in the proceedings at issue.

However, even assuming that the applicants can be considered as

victims within the meaning of Article 25 (Art. 25) of the Convention

and have exhausted all domestic remedies within the meaning of Article

26 (Art. 26) of the Convention, the Commission considers that the

proceedings at issue on the adoption of a new zoning plan envisaging

the construction of a road did not, in the particular circumstances of

the present case, determine any civil rights or obligations within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. mutatis

mutandis No. 11844/85, Dec. 29.2.88, D.R. 55 p. 205).

It follows that the application is incompatible ratione materiae

with the provisions of the Convention 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

APPENDIX I

List of the applicants

1) Allegonda VAN DER SLOOT, born in 1947, residing in Boxtel;

2) Freek VAN DER SLOOT, born in 1971, residing in Boxtel;

3) Ingrid VAN DER SLOOT, born in 1968, residing in Boxtel;

4) Marinus VAN DER SLOOT, born in 1941, residing in Boxtel;

5) Bernardus MAAS, born in 1909, residing in Boxtel;

6) Lamberdina VAN DE SANDE, born in 1936, residing in Boxtel;

7) Johannes VAN DE SANDE, born in 1938, residing in Vught;

8) Wilhelmus VAN LEEUWEN, born in 1925, residing in Sassenheim;

9) Adriana VAN DER SLOOT-

VAN KRIEKEN, born in 1911, residing in Boxtel;

10) Marjo VAN DE SANDE, born in 1968, residing in Vught;

11) Cornelis VAN DER SLOOT, born in 1929, residing in Boxtel;

12) Johannes SPOOR, born in 1944, residing in Best;

13) Cornelia SPOOR, born in 1942, residing in Boxtel;

14) Henricus KLIJN, born in 1955, residing in Tilburg;

15) Gerarda KLIJN, born in 1955, residing in Boxtel;

16) Lambertus VAN DER SLOOT, born in 1942, residing in Boxtel;

17) Johannes DOMS, born in 1943, residing in Boxtel;

18) Marie VAN DE SANDE, born in 1966, residing in Vught;

19) Petrus VAN DER SLOOT, born in 1947, residing in Boxtel;

20) Johannes VAN DER SLOOT, born in 1933, residing in Boxtel;

21) Paulus VAN DER SLOOT, born in 1952, residing in Boxtel;

22) Milieuvereniging "Het Groene Hart" with its registered seat in Den

Dungen;

23) Bewonersvereniging Eindhovenseweg Liempdseweg with its registered

seat in Boxtel.

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VAN DER SLOOT ; AND OTHERS v. THE NETHERLANDS

VAN DER SLOOT ; AND OTHERS v. THE NETHERLANDS

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