Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15141/89

by Joseph McDONNELL

against Ireland

The European Commission of Human Rights sitting in private

on 15 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 March 1989 by

Joseph McDONNELL against Ireland and registered on 19 June 1989 under

file No. 15141/89;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a sand and gravel contractor born in 1929.

He lives in Kilcullen, Co. Kildare.

The applicant owns, inter alia, a parcel of land with an

area of some 11.76 acres (approximately 4.75 hectares) from which he

intended to extract sand and gravel. The land adjoins an existing

sand and gravel pit. The Electricity Supply Board (ESB) served a

notice dated 22 November 1983 of intention to run electric lines over

the applicant's land, work which included the erection of two pylons,

erected on 1 July 1985. A second notice, dated 16 April 1986, related

to the taking down of one of the pylons and its re-erection on a

different part of the applicant's land.

On 18 January 1989, an arbitrator gave his award in a dispute

between the applicant and the ESB over compensation to be paid by the

ESB to the applicant following the notices of 22 November 1983 and 6

April 1986. The arbitrator awarded £15,835 in respect of the notice of

22 November 1983 and £12,250 in respect of the notice of 16 April 1986.

On 14 April 1989 the applicant's counsel, after a consultation

with the applicant, his solicitor and senior counsel, wrote an opinion

in which he pointed out that the statutory basis for compensation was

roughly "the measure of the reduction in the open market value on the

sale of the free-hold estate" at the date of the statutory

interference. The ESB had, at an earlier stage, offered compensation

on the basis of quantities and tonnages, but the arbitrator was not

bound by that and made his award on the basis of the reduction in

market value. As to the options available to the applicant, counsel

wrote, inter alia, as follows:

"In regard to [the possibility of a constitutional appeal]

what we are suggesting is no more and no less than the ESB

Act 1985, by incorporating the 1919 Act, has not compensated

our client to the full extent to which he is

constitutionally entitled. In other words, the Act is

unconstitutional. It is our contention that the open market

valuation based on the price that could be achieved for the

land in a sale between the Purchaser and the Vendor

is not the true reflection of the worth of the land to be

produced for the benefit of the landowner when the sand and

gravel is excavated and sold by the ton. There are dicta by

one or two of the Judges in the Supreme Court in the Bula

Case which are supportive of this view but dicta, supportive

though they might be, are not the basis for a confident

prediction of success.

...

It is the marketplace which is supposed reliably to take

into account, when it fixes the market value of the land,

the sum of money which a reasonable purchaser would be

prepared to pay therefor, having regard to all its

potentials and drawbacks. If a prospective purchaser would

have been prepared to pay no more than, say, £6,000 an acre

for [the applicant's] land in 1982, why should the ESB be

then required to compensate him on the basis of £50,000 per

acre, or more? Is compensation to be assessed only on the

basis of future profitability? If so, compensation for a

road-widening scheme in an urban area would be payable at the

rate of nil, since no householder could contend that he was

expecting to make a profit from the small piece of garden

which he now has to give up for the purposes of the scheme.

Obviously, therefore, some property has value although it

does not have an underlying profit potential. Conversely,

the underlying profit potential of certain land need not

necessarily be reflected in the market value thereof. Where

will we be asking the Court to draw the line? To be

constitutionally sound, we will have to be putting forward

the bones of a scheme which meets the requirements, not only

of [the applicant's] case but of all cases. The marketplace

provides a mechanism to meet the requirements of all cases

and for that reason I would not rate our chances of

succeeding in this application at any better than 15%."

Counsel's opinion, bearing in mind all the circumstances, was

the applicant should try to find a "commercial option", that is, to

find somebody who would work the site as it was.

COMPLAINTS

The applicant states that he and his family are now unable to

realise the commercial market value of their 11.75 acre field, with its

substantial sand and gravel deposits. He says that the very low

"quantities and tonnages" offer by the ESB drove him into applying

for arbitration, the ESB knowing that the basis for calculation of

compensation would produce a low value.

THE LAW

The Commission has considered this application under Article 1

of Protocol No. 1 (P1-1) to the Convention, which 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 applicant argues that the statutory basis for

compensation applied by the arbitrator was wrong in that he is now

unable to realise the commercial market value of his land.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of Article 1 of Protocol No. 1 (P1-1) as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

In the present case the applicant failed to bring proceedings

in the High Court seeking a declaration that the relevant provisions

of the Electricity (Supply) (Amendment) Act 1985 are unconstitutional.

In this regard, the applicant could have challenged the

constitutionality of the Act by reference to his property rights on the

basis that it had not compensated him to the extent to which he was

entitled under the Constitution. The Commission notes that a

declaratory action before the High Court with the possibility of an

appeal to the Supreme Court constitutes the most appropriate method

under Irish law of seeking to assert and vindicate constitutional rights

(cf. No. 9596/81, Dec. 12.12.83, unpublished). Indeed the 1985 Act

itself was passed subsequent to a successful constitutional challenge

to the previous legislation in the case of E.S.B. v. Gormley (1985 IR

129). The applicant has not, therefore, exhausted the remedies

available to him under Irish law. Moreover, an examination of the

case as it has been submitted does not disclose the existence of any

special circumstances which might have absolved him, according to the

generally recognised rules of international law, from exhausting the

domestic remedies at his disposal.

The Commission notes that the applicant's counsel put the

chances of success of such an appeal at not "any better than 15%".

The potential effectiveness of the remedy under discussion was not

challenged by the applicant's counsel; doubts as to whether a

potentially effective remedy will, in the event, prove successful, do

not constitute such a special circumstance (cf. No. 9559/81, Dec.

9.5.83, D.R. 33 p. 158).

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MCDONNELL v. IRELAND

MCDONNELL v. IRELAND