AS TO THE ADMISSIBILITY OF

                      Application No. 12742/87

                      by PINE VALLEY DEVELOPMENTS LTD. and Others

                      against Ireland

        The European Commission of Human Rights sitting in private

on 3 May 1989 , the following members being present:

             MM.  J. A. FROWEIN, Acting President

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  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 January 1987

by Pine Valley Developments Ltd. and Others against Ireland and

registered on 23 February 1987 under file No. 12742/87;

        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 facts of the case may be summarised as follows:

        The first applicant is Pine Valley Developments Limited, a

company registered in Dublin whose principal business was the purchase

and the development of land.

        The second applicant is Healy Holdings Limited, the parent

company of the first applicant also registered in Dublin, whose

principal business was the purchase and development of land.  The

company has been in receivership since 14 October 1985.

        The third applicant, Mr.  Daniel Healy, is the managing

director and sole shareholder of both the first and second

applicants.  He is an Irish national and lives, at present, in England.

        The applicants are represented, in the proceedings before the

Commission, by Mr.  Philip O'Sullivan S.C., of counsel, and Messrs.

McKeever & Son, Solicitors, Dublin.

        On 10 March 1977 the Minister for Local Government granted

outline planning permission for industrial warehouse and office

development in respect of a site comprising 211/2 acres of land at

Clondalkin, County Dublin to its then owner, Mr.  P. Thornton.  This

decision was granted on appeal against a decision of the planning

authority (Dublin County Council) refusing an application for full

planning permission on the grounds inter alia that the area was

zoned to provide for the further development of agriculture so as to

preserve a green belt.

        On 15 November 1978 the first applicant (Pine Valley

Developments Limited) agreed to purchase the lands for £550,000 in

reliance upon the grant of outline planning permission.  Such outline

planning permission establishes the right of the landowner in

principle to develop land subject only to subsequent approval of

detailed plans.  In the event that such subsequent approval is

refused, Section 55 of the 1963 Planning Act provides for a general

right to compensation for any reduction in value of the interest of

the claimant in the land.  Under Section 29 of the Local Government

(Planning and Development) Act 1976, planning permissions ceased to

have effect after five years ("withering permissions").

        On 16 July 1980 Pine Valley Developments Limited applied to

Dublin County Council for detailed planning approval in reliance on

the outline permission already granted.

        On the refusal by the Council on 15 September 1980 to grant

planning approval, the first applicant sought, and was granted on

8 December 1980, a conditional Order, and on 27 May 1981, an Order of

Mandamus by the High Court directing Dublin County Council to grant

planning approval.  The first applicant then sold the property to the

second applicant (its parent company) on 17 July 1981 for £550,000.  On

an appeal by Dublin County Council against this decision, the Supreme

Court held, on 5 February 1982, that the grant of outline planning

permission by the Minister for Local Government was ultra vires

the Minister and was therefore a nullity.  The court found inter alia

that the Minister had no power under the relevant statutory provision,

upon appeal from the planning authority, to make a decision which

contravened the development plan.  He only possessed such power if the

Planning Authority had sought his permission to make a decision itself

in contravention of the development plan.

        As a result of this decision, the first applicant claims that

the lands which were purchased for £550,000 could no longer be

developed and were worth substantially less.  The lands were let for

one year in 1982 for a nominal rent and have been vacant since.  The

second applicant (Healy Holdings Limited) has, as a result, been put

into receivership and the third applicant claims that he has lost all

of his assets.

        In order to alleviate the legal uncertainty created by the

above decision of the Supreme Court, the Irish Parliament enacted the

Local Government (Planning and Development) Act 1982 which entered

into force on 28 July 1982.

        Section 6 of the 1982 Act provided as follows:

"1)  A permission or approval granted on appeal ... prior to

the 15th day of March 1977 shall not be, and shall not be

regarded as ever having been, invalid by reason only of the

fact that the development concerned contravened, or would

contravene, materially the development plan relating to the

area of the planning authority to whose decision the appeal

related.

2)  If, because of any or all of its provisions, subsection

(1) of this section would, but for this subsection, conflict

with a constitutional right of any person, the provisions of

that subsection shall be subject to such limitation as is

necessary to secure that they do not so conflict but shall

be otherwise of full force and effect."

        Because they had exercised their constitutional right to

litigate the validity of the planning permission in the courts, and

because this led to the above finding of invalidity by the Supreme

Court, the applicants considered that Section 6(2) had the effect of

excluding them from the benefit of Section 6 (1).

        On 11 March 1983 the first applicant brought proceedings

against the Minister of the Environment seeking damages for breach of

statutory duty, for negligent misrepresentation and for negligence.

The statement of claim was subsequently amended on 25 January 1985 to

include the second and third applicants as plaintiffs.  Subsequently

the parties agreed to the following points of law to be determined.

1)      Whether an action in damages for breach of statutory duty

lay against the Minister of the Environment for granting on legal

advice outline planning permission to Mr.  Thornton;

2)      Whether an action in damages for negligence lay against

the Minister of the Environment;

3)      Whether an action in damages for negligent

misrepresentation lay against the Minister of the Environment;

4)      Whether in the circumstances pleaded the State has failed

to vindicate the property rights of the plaintiff and if so,

whether an action for damages lay against the State;

5)      Whether in the circumstances pleaded the State has in its

laws respected, and as far as practicable by its laws, defended

and vindicated the property rights of the plaintiff and if so,

whether an action in damages lies against the State.

        On 28 June 1985 the High Court found that the applicant had no

cause of action.  On 30 July 1986 the Supreme Court unanimously

dismissed an appeal against this decision ([1987] ILRM, pp. 753-768).

        In rejecting the applicant's claim based on negligence and

negligent misrepresentation, Mr.  Justice Finlay C.J. (Griffin J

agreeing and Hederman J concurring) stated as follows: (ibid.,

p. 756):

        "If a Minister of State, granted as a persona designata

        a specific duty and function to make decisions under a

        statutory code (as occurs in this case), exercises his

        discretion bona fide, having obtained and followed

        the legal advice of the permanent legal advisers attached

        to his Department, I cannot see how he could be said to have

        been negligent if the law eventually proves to be otherwise

        than they have advised him and if by reason of that he makes

        an order which is invalid or ultra vires.  The

        Plaintiffs on this appeal expressly waived any question of an

        allegation of malice or improper motives against the first-

        named Defendant, nor indeed was any allegation of malice or

        impropriety made against him in the pleadings.  I am, therefore,

        satisfied that insofar as the Plaintiffs have appealed against

        the learned trial Judge's findings, that an action in damages

        for negligence or for negligent misrepresentation does not and

        cannot lie, the appeal must fail."

        As regards the claim against the State for damages based upon

a breach of the applicant's constitutional right of property,

Mr.  Justice Finlay C.J. added as follows (ibid., pp. 759-760):

        "The purchase of land for development purposes is manifestly

        a major example of a speculative or risky commercial

        enterprise.  Changes in market values or economic forces,

        changes in decisions of planning authorities, the rescission

        of them, and many other factors, indeed, may make the land

        more or less valuable in the hands of its purchasers.

        I am prepared to accept that prima facie in this

        instance the fact that the Minister's decision was ultimately

        found by this Court to have been a nullity, probably

        contributed towards a diminution in the value of the land

        in the Plaintiffs' hands.  That fact, itself, however,

        does not, in my view, necessarily mean that an injustice

        was done to the Plaintiffs and I am certain that that does

        not constitute an unjust attack on the Plaintiffs' property

        rights.

        The obligation of the State in Article 40.3.1 and Article

        40.3.2. is in the first instance, as far as practicable by

        its law to defend and vindicate the personal rights of the

        citizen and, in the second instance, to protect as best it

        may from unjust attack, and in the case of injustice done,

        vindicate the property rights of every citizen.

        ...

        I am satisfied that it would be reasonable to regard as a

        requirement of the common good an immunity to persons in whom

        are vested statutory powers of decision from claims for

        compensation where they act without negligence and bona fide.

        Such an immunity would contribute to the efficient and

        decisive exercise of such statutory powers and would, it

        seems to me, tend to avoid indecisiveness and delay,

        which might otherwise be involved.  I am, therefore,

        satisfied that there cannot be, on the facts of this case,

        any question of there being a clearcut obligation imposed on

        the State to provide compensation for the Plaintiffs in the

        circumstances which have arisen.  I am, therefore, satisfied

        that the submissions made with regard to a claim for damages

        for breach of constitutional rights must also fail.  It is

        not necessary for me to decide, and I express no opinion, on

        the question as to whether an action does lie for failure on

        the part of the Oireachtas to legislate in protection of

        personal rights, as distinct from the action to set aside or

        invalidate legislation which fails adequately to protect or

        vindicate them.

        I would, accordingly, dismiss the appeal of the Plaintiffs

        against the decision of the High Court in the case."

        On the question of whether the applicants were excluded by

Section 6(2) Mr.  Justice Finlay C.J. stated that the 1982 Act

retrospectively validated certain planning decisions but contained a

saver "for cases involving constitutional rights of other persons,

which would appear to exclude the plaintiffs from the benefit of such

retrospective validation".

        Mr.  Justice Henchy (Griffin J agreeing) also considered that

Section 6 (2) excluded the applicants and that no issue of unfair

discrimination arose (ibid., p. 764):

        "S. 6 of that Act had the effect of giving

retrospective validity to planning permissions such as this

granted on appeal prior to 15 March 1977, save where such

retrospective validation would conflict with a constitutional

right of any person.  This meant that Pine Valley were

excluded from the benefit of the section, for they had

exercised their constitutional right to litigate the

validity of the planning permission in the Courts.

That exclusion has been attacked by counsel for

Pine Valley as being unfairly discriminatory as

far as they are concerned, but in my view, while a

discrimination has resulted, the primary and overriding

purpose of the section was to avoid an unconstitutional

invasion of the judicial domain by attempting to give

validity to any planning permission which the Courts may

have held to be lacking in validity.  It would follow that

no injustice has been done to Pine Valley by s.6 of the

1982 Act."

        Mr.  Justice Lardner considered that the exclusion of the

applicants by Section 6 constituted neither an unjust attack on their

property rights nor unlawful discrimination (ibid., p. 767):

        "The particular controversy between the parties in

Pine Valley Developments Ltd. v.  Dublin County Council was

tried and decided by this Court in favour of the Defendants

in February 1982.  No doubt it was apprehended that s. 6(1)

of the Local Government (Planning and Development) Amendment

Act 1982 might operate to reverse retrospectively this

Court's decision and that this might constitute an

unwarrantable interference by the legislature in a decision

of the courts.  It seems probable that it was in these

circumstances that s. 6(2) was enacted with a view to

avoding such interference.  And this subsection has been

accepted by counsel for both sides in the present case as

excluding the appellants from the benefit of s. 6(1).

        It is in respect of this situation or set of facts

that the appellants contend that to exclude them from the

benefit of s. 6(1) constitutes (1) an unjust attack on their

property rights or an injustice done which affects their

property rights and (b) discriminates unfairly as between

them and other persons who had received permissions or

approvals of the Minister on appeal under Part IV of the

1963 Act and who were given the benefit of s. 6(1).  In

regard to the first contention it seems to me that s. 6(2)

was included by the Oireachtas for the purpose of

respecting and not interfering with the determination by the

courts of the justiciable controversy which constituted the

proceedings in Pine Valley Developments Limited v.  Dublin

County Council and of respecting the constitutional rights of

the parties, both plaintiffs and defendants in that action,

to have their controversy determined by the courts rather

than by the Oireachtas.  It may be that there is to some

extent a conflict here between the right of the parties to

have their controversy judicially determined by the courts

and the present appellants' property interest.  That fact in

itself, however, does not in my view, necessarily mean that

an injustice was done to the appellants and I am satisfied

that it does not constitute an unjust attack on the

appellants' property rights or an unlawful discrimination

against them."

        Relevant provisions of Irish law

        Articles 40.1, 40.3 and 43 of the Constitution provide as

follows:

Article 40.

"1.     All citizens shall, as human persons, be held

        equal before the law.

        This shall not be held to mean that the State

        shall not in its enactments have due regard to

        differences of capacity, physical and moral,

        and of social function."

...

"3.     1° The State guarantees in its laws to respect,

        and, as far as practicable, by its law to defend

        and vindicate the personal rights of the citizen.

        2° The State shall, in particular, by its laws

        protect as best it may from unjust attack and,

        in the case of injustice done, vindicate the

        life, person, good name, and property rights of

        every citizen."

Article 43

"1.     1° The State acknowledges that man, in virtue of his

        rational being, has the natural right, antecedent

        to positive law, to the private ownership of

        external goods.

        2° The State accordingly guarantees to pass no law

        attempting to abolish the right of private

        ownership or the general right to transfer,

        bequeath, and inherit property.

2.      1°  The State recognises, however, that the

        exercise of the rights mentioned in the foregoing

        provisions of this Article ought, in civil society

        to be regulated by the principles of social justice.

        2°  The State, accordingly, may as occasion requires

        delimit by law the exercise of the said rights with

        a view to reconciling their exercise with the

        exigencies of the common good."

COMPLAINTS

1.      The applicants complain under Article 1 of Protocol No. 1 to

the Convention that they have been unlawfully deprived of their

possessions as a result of their reliance on the outline permission

granted by the Minister for Local Government in respect of the

property which they purchased.  They claim that the property, for which

they had paid £550,000 on the basis that outline planning permission

had been granted, was now only worth approximately £50,000.  In this

respect they submit that the inapplicability of the principle of

estoppel to representations made by planning authorities under Irish

law has operated to deprive them of their property, and further, that

the immunity of Ministers from claims for compensation in such cases

fails to establish a fair balance between the public interest on the

one hand and individual rights on the other.

        The applicants further complain that there has been an

unjustified control of the use of their property and that the failure

to grant compensation is disproportionate to the wrong suffered.  They

point out that others similarly affected by the Supreme Court decision

had their planning permissions  and approvals retrospectively

validated by Section 6 of the 1982 Act.

2.      The applicants complain that they have been denied an

effective remedy under Irish law in breach of Article 13 of the

Convention.  They point out that in two successive proceedings they

have sought to vindicate their rights and obtain a remedy before the

Irish courts, and that such a remedy has been granted by the State

to every other person similarly situated.

3.      The applicants complain further that Section 6 of the 1982

Act retrospectively validates the grant of planning permissions in

respect of every other person affected by the Minister's decision

except the applicants.  This section could have been drafted in such a

way as to confer the benefit of the retrospective validation on the

applicants as well as other landowners similarly situated.  They

therefore submit that they have been victims of discrimination in the

enjoyment of their property rights, on the grounds of their status as

unsuccessful litigants, in breach of Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 6 January 1987 and

registered on 23 February 1987.  On 8 October 1987, the Commission

decided, pursuant to Rule 42 (2)(b) of the Commission's Rules of

Procedure, to bring the application to the notice of the respondent

Government and to invite them to submit observations on the

admissibility and merits of the application.

        On 15 March 1988, the respondent Government submitted their

observations and on 9 May 1988 the applicants submitted their

observations in reply.

        The Commission considered the application again on 15 December

1988 and decided to invite the parties to a hearing on the

admissibility and merits of the case insofar as it raised issues under

Article 1 of Protocol No. 1 and Article 14 of the Convention.

       The hearing took place in Strasbourg on 3 May 1989.  The

parties were represented as follows:

The Government

Mr.  P. E. SMYTH         Agent, Department of Foreign Affairs

Mr.  H. J. O'FLAHERTY    Senior Counsel

Mr.  J. O'REILLY         Counsel

Mr.  J. F. GORMLEY       Office of the Attorney General

Mr.  P. FENTON           Department of the Environment

The applicants

Mr.  P. O'SULLIVAN       Senior Counsel

Mr.  G. WALSH            Solicitor

Ms.  H. O'SULLIVAN       Assistant

        SUBMISSIONS OF THE PARTIES

        The respondent Government

Article 25 of the Convention

        The Government submit that all three applicants cannot claim

to be victims at the same time within the meaning of Article 25 para.

1 of the Convention.  In particular the first applicant cannot be

considered to be such a "victim" in that it has already received an

amount equivalent to the original purchase price of the land.

Furthermore, the grant of outline planning permission is inherently

conditional and therefore cannot be said to give rise to a right

protected by the Convention.  The Government also point out that the

third applicant is the only person among the applicants to whom are

accorded clear constitutional rights under Irish law and is therefore

the only person who could be regarded as a "victim" of their breach.

In addition, they question whether the applications on behalf of

companies one of which is in receivership and the other about to be

struck off the register of companies are validly before the

Commission.   Finally, they submit that the applicants cannot be

regarded as victims since they have not applied for compensation

under the relevant provisions of the 1963 Act.

Article 26 of the Convention

        The Government emphasise that many of the factual

matters upon which the applicants are basing their claim have never

been established before the Irish courts and are now introduced for

the first time before the Commission.  These matters include:

(1) the relationship between the first applicant and the second

applicant and the reasons for the failure of their respective

undertakings, as well as the personal circumstances of the third

applicant and the alleged losses sustained by him;

(2) the value of the property in question;

(3) the existence of malice or abuse of power by the Minister, a

possibility which was recognised as having been expressly waived by

the applicants before the Irish courts.

        Against this background the Government submit that the

applicants have failed to exhaust four separate remedies under

domestic law in respect of their complaints under the Convention.  A

fatal flaw in the applicants' case was their failure to seek a

declaration that Section 6 (2) of the 1982 Act did not apply to their

circumstances and that they were entitled to the benefit of Section 6

(1) of the 1982 Act.  In addition, it would have been open to the

applicants to have sought a declaration that the provisions of Section

6 (2) of the 1982 Act were unconstitutional and invalid, having regard

to the provisions of Article 40.3 and Article 43 of the Constitution

of Ireland.  It would have been open to the applicants to have sought

these declarations in their original statement of claim before the

High Court on 15 June 1983 or in their amended pleadings of 25 January

1985.  There would have been no requirement to join any additional

parties to the domestic proceedings as the Attorney General is the

legitimate contradictor concerning all such challenges and he was

already a party to the proceedings.

        In support of this submission, the Government argue that the

applicants mistakenly conceded before the High Court and the Supreme

Court in the second set of proceedings that Section 6 (2) of the 1982

Act had the effect of depriving them of the benefit of Section 6 (1).

The comments of Mr.  Justice Henchy and Mr.  Justice Lardner in this

respect are obiter dicta and reflect little more than a gloss on a

concession made by the applicants, and the Government take issue with

the applicants' reliance on these passages of the Supreme Court

judgment for the proposition that under Irish constitutional law the

legislature is not free to reverse the effect of a Supreme Court

decision on a particular case.  The true position under Irish law,

supported by authority, is that while the legislature cannot interfere

in respect of litigation then pending or then being dealt with by the

courts (Buckley v.  A.G. [1950] I.R. 67), there is nothing to prevent

it from changing the law retrospectively so as to nullify the effect

of the court's judgment in one case or in a series of cases (see e.g.

Garvey v.  Ireland [1981] I.R. 75).  For this reason, once the

litigation in the applicants' first case itself had been concluded and

the judgment delivered, there was nothing in principle to prevent the

legislature from overruling that determination of invalidity with

retrospective effect.

        This submission is supported fully by the short debate that

took place on 22 July 1982 in Seanad Eireann (Upper House of

Parliament) when consideration was given to the passing of the Local

Government (Planning and Development) Act 1982.  During the course of

that debate the responsible Minister of State stated:

"Sub-section 2 has been included by the Parliamentary

draftsmen, with the agreement of the Attorney General, so as

to preserve the rights of parties to any proceedings now

before the courts and to ensure that no court is deprived of

jurisdiction regarding an issue raised in such proceedings.

This sub-section is also designed to meet the case of any

unconstitutional interference with a property right."

        The Government would point out in this connection that legal

issues similar to those raised in the applicants' litigation were

being raised in separate proceedings before the High Court and the

Supreme Court at the time of the enactment of the 1982 Act (see

The State (Finglas Industrial Developments Ltd.) v.  Dublin County

Council, unreported Supreme Court judgment of 17 February 1983).

        As a matter of first principle the Constitution of Ireland and

the rights guaranteed thereunder apply to any person even though a

statute may not expressly refer to them.  Although it is true that

constitutional rights in Irish law are generally granted to natural

persons and not to corporate bodies or undertakings, there have been

instances in which companies have been allowed to rely on fundamental

constitutional rights of the individual.  In the first Pine Valley

case Mr.  Justice Henchy noted that

        "... when the lands were then purchased the shareholders

        in Pine Valley had in the eyes of the law as then

        understood acquired through their company valuable

        property rights in the land".

        By contrast, it is clear that Government agencies such as

local authorities do not themselves enjoy or possess constitutional

rights.  The applicants have consequently failed to show that the

retrospective granting of planning permission would affect the

"constitutional rights of any person" so as to attract the exclusion

clause of Section 6 (2) since Dublin County Council, the successful

party in the first Pine Valley Case, is not such a "person" and does

not enjoy any constitutional rights.

        As regards the failure of the applicants to challenge the

validity of Section 6 (2) which they interpreted as excluding them

from the benefit conferred by Section 6(1) of the 1982 Act, the

Government submit that the challenging on constitutional grounds in

Irish law of the relevant statutory provisions is normally a sine qua

non for the subsequent admissibility of the complaint under the

Convention.  Otherwise the domestic courts will have been deprived of

the opportunity of considering the equivalent argument advanced before

the Commission.  For this reason, the Government submit that the

applicants clearly failed to exhaust domestic remedies as required by

Article 26 of the Convention in failing to challenge the

constitutionality of Section 6 (2) of the 1982 Act.

        There are two further instances where the applicants have

failed to exhaust such remedies.  Firstly, it is submitted that the

applicants have not shown that they could not have recovered damages

from the former owner of the land in question for breach of a

statutory implied covenant as to title under Section 7 of the

Conveyancing Act 1881 after it had transpired that the outline

planning permission given to the former owner was void.  Under Irish

law, if a contract for the sale of land is made subject to the

obtaining of a valid permission, the purchaser is entitled to

repudiate the contract if such permission is not forthcoming or when

no bona fide application for permission has been made.  This

proposition would seem, a fortiori, to entitle the purchaser of land

to sue for damages under Section 7 of that Act where a vendor has sold

without the benefit of a valid permission and where the existence of

such a permission was a condition of sale.

        Finally, it is submitted that the applicants have not shown

that they could not have succeeded against the former owner of the

lands in question under the law of unjust enrichment.  Under Irish

law, money paid under mistake of law is recoverable if the parties

were not "in pari delictu".  It is submitted that this principle is

applicable to the present case.  The applicants were not in possession

of the relevant facts at the time of the purchase of the land from the

former owner and they had no reason at that time to believe that any

planning permission might be void.  In these circumstances, it is

submitted that the applicants would have had a good cause of action

against the former owner under the law of unjust enrichment.

        Article 1 of Protocol No. 1

        The Government submit that the facts of the present

application do not disclose any interference with the applicants'

entitlement to the peaceful enjoyment of their possessions within the

meaning of Article 1 of Protocol No. 1.

        In response to the applicants' reliance upon the principles of

estoppel under English law as stated by Lord Denning in the Lever

case, the Government point out that this is now of doubtful authority

and that it provides no answer to the applicants' complaints (see,

e.g., Western Fish Products Ltd. v.  Penwith District Council [1981]

2 All E.R. 204).

        It is also submitted that the applicants have not been

deprived of their property.  At the time of the filing of their

application, the applicants still had an interest in the land in

question which, since 1982, would appear to have been left as a wasting

asset.  Furthermore, the interference found by the Court in the

Sporrong and Lönnroth case (Eur.  Court H.R., judgment of 23 September

1982, Series A No. 52) does not approach the situation in the

present case.  There is no question of alleged mala fides as the

Minister had been acting bona fide on legal advice since the coming

into operation of the Planning Code in 1963 that he was entitled to

grant outline planning permission in the circumstances complained of.

Unlike the circumstances of that case, or of the circumstances of the

Erkner and Hofauer case, the applicants' title to the property in

question was never "precarious and defeasible" and insofar as there has

been any uncertainty, it has not been such as to force them to bear a

disproportionate burden since it has been the result of a relatively

expeditious litigation concerning the validity of the planning

permission.

        Nor did the restrictions on construction in the present case

impose an "individual and excessive burden" on the applicants, as they

are similar to those imposed on the owners of agricultural property

throughout Ireland.  Furthermore, it is clear that the public interest

requires that the lands in question remain zoned for agricultural

purposes and that the question falls within the wide margin of

appreciation in these matters recognised by the Court in the Sporrong

and Lönnroth case.

        Finally, it is submitted that insofar as the applicants

suffered any loss, this loss was caused by the operation of market

forces and does not, as such, require compensation by the Government.

Any person such as the applicants who purchases agricultural land with

a view to developing it for industrial or commercial purposes must be

prepared to accept the legitimate risks which attach to such a

speculative adventure.  The possibility of annulment of a planning

permission is among the legitimate risks which must be hazarded and

the Government cannot be obliged to compensate the purchaser should

this venture prove to be a commercial failure.

        Article 14 of the Convention

        For the reasons advanced above with respect to Article 26 of

the Convention, the Government do not consider that on its proper

construction Section 6 (2) of the 1982 Act excluded the applicants

from the benefit conferred by Section 6 (1).  Insofar as they have

been excluded from the operation of Section 6(1), therefore, this has

been solely a consequence of the applicants' mistaken concession on

this point in the course of the domestic proceedings.  As the

applicants have not exhausted their domestic remedies by seeking the

appropriate declaration and if necessary challenging the validity of

the statutory provision on constitutional grounds, they should be

precluded from raising the argument before the Commission.

        The  recent judgment of the High Court in Brady & Others v.

Donegal County Council and Another (unreported judgment of 6 November

1987), in which the two month limitation period for challenging

planning decisions was struck down, illustrates the importance of

litigants not making inappropriate concessions and exhausting all

legal remedies open to them.  It was illogical of the applicants to

claim damages for breach of constitutional rights and not to challenge

the constitutionality of the statutory provisions about which they

complained.

        It is clear from the judgment of Mr.  Justice Finlay, that this

argument had not been advanced before the Irish courts since he

indicated that he expressed no opinion "on the question as to whether

an action does lie for failure on the part of the Oireachtas to

legislate in protection of personal rights as distinct from the action

to set aside or invalidate legislation which fails adequately to

protect or vindicate them".

        Finally, the Government recall the statement made by the

Minister of State at the Department of the Environment in the Seanad

debates that Section 6(2) had been drafted so as to preserve the

rights of parties to any proceedings then before the courts and to

ensure that no court was deprived of jurisdiction regarding an issue

raised in such proceedings.

        Article 13 of the Convention

        For the reasons advanced above with respect to Articles

14 and 26 of the Convention, the Government reject as being without

foundation the applicants' contention that they did not have an

effective remedy under national law for the alleged violation of their

rights under the Convention.

        The applicants

        Article 25 of the Convention

        In response to the Government's submissions on the question of

whether the applicants are victims within the meaning of Article 25 of

the Convention, the applicants submit the following information.

The first applicant has lost its right to develop the lands and

thereby make a profit on its investment of £550,000.  The second

applicant has lost the vast bulk of the £550,000 it paid to the first

applicant for the lands in question.  The lands were ultimately sold

in or about January 1988 for £50,000.  The third applicant is in

practice the sole beneficiary of the first applicant and the second

applicant has assigned its interest in the present proceedings to him.

The third applicant has, in fact, borne the above losses.

        Heavy costs, expenses and outlay have been incurred in

litigation and in processing applications for approval and permission

on the lands.  As a result, the third applicant, who is now aged 64,

has suffered severe financial hardship.

        The applicants also point out that, under Section 55 (1) of the

Irish Planning Code, a refusal to develop land confers in principle a

right to compensation (Owenabue Ltd. v.  Dublin County Council,

82 ILRM 150).  If planning permission had been refused, as

distinct from having been declared a nullity by the Supreme Court, the

applicants would consequently have been entitled to compensation.  In

this connection it is established under Irish law that the third

applicant's interest as a shareholder in the first and second

applicant companies constitutes a property right for the purposes of

Article 40.3 of the Constitution (Private Motorists Provident Society

Ltd. and Moore v.  A.G. [1984] ILRM, 88).  In consequence, to the

extent that these applicants have suffered loss, the third applicant

suffered loss as the sole shareholder in the applicant companies.

        Article 26 of the Convention

        The applicants emphasise the high probability that the first

two remedies suggested by the Government would at best have produced

"Pyrrhic" victories and more likely defeats involving further delays and

costs which the applicants were unable to provide.

        In the first place, it is clear that the applicants were not

entitled to the benefit of Section 6(1) of the 1982 Act.

        This position was accepted by each of the judges who expressly

dealt with this point in the second Pine Valley case, specifically

Henchy J., Griffin J. and Lardner J. in the Supreme Court.  In

particular Mr.  Justice Henchy accepted that the applicants were

excluded  ("This means that Pine Valley were excluded from the benefit

of the Section").  Mr.  Justice Griffin expressly agreed with the

judgment of Mr.  Justice Henchy.  Mr.  Justice Lardner also accepted

that Pine Valley were excluded from the operation of Section 6 ("S.

6(2) would appear to exclude the appellants from the benefits of such

retrospective validation").  Moreover he added that counsel for both

sides had accepted that the applicants were so excluded.  An action

for a declaration that this Section did apply to them consequently

offered no prospect of success and therefore cannot be considered as a

"remedy" for the purposes of Article 26.

        Even if, contrary to these powerful indications of the Supreme

Court, such an action would have succeeded, it would certainly have

come too late to have been of any practical benefit to the applicants.

Under Section 2 of the 1982 Act the life of planning permission

in the present case expired on 10 March 1984.  A plenary action

seeking the declaration, commencing in July 1982 and involving an

appeal to the Supreme Court in accordance with Article 26 of the

Constitution, would have taken considerably longer than the 18 months

in question.  It would have had to be followed by an application for

approval of plans which would almost certainly have been appealed to

An Bord Pleanála (Planning Board).  By this time, the benefit of the

original Ministerial outline permission would have been exhausted by

the passage of time and the action would therefore have provided no

benefit to the applicants.

        Secondly, with respect to the suggested proceedings

challenging the constitutionality of Section 6 of the 1982 Act, the

applicants point out that sub-section 2 of this provision merely

provides for a "saver" in respect of any constitutional conflict

arising from the application of sub-section 1 and that it is as a

result inconceivable that any challenge as to its constitutionality

could have been framed, let alone succeed.  The effect of a successful

challenge to sub-section 1 on the other hand would not have been to

bring the applicants within the ambit of its application, but rather

to exclude everyone else by the deletion of Section 6 from the

1982 Act.

        The applicants add that this interpretation is supported by

the clear wording of Section 6(1) in that it provides that permissions

"shall not be, and shall not be regarded as ever having been,

invalid ...", which clearly means that at all times, including that

period when the issue raised by Pine Valley was pending before the

Supreme Court, the outline permissions were to be regarded as valid.

Such a possibility in the applicants' case is completely precluded by

the central finding of the Supreme Court in the first Pine Valley

case, namely that the outline permission there at issue was invalid.

        The applicants accept that the legislature is free to reverse

the effect of a Supreme Court decision after the case is finished

(Buckley v.  A.G. [1950] I.R. 67).  It is important to note, however,

that the conclusion does not follow that as a result Section 6

necessarily operates to reverse the effect of the Supreme Court

decision in the first Pine Valley case.  On the contrary, the

unnecessarily wide wording of Section 6 (1) operates so as to make

such reversal incompatible with the principle in the case of Buckley

v. the Attorney General, unless the first Pine Valley decision is

excluded, which of course it was by Section 6 (2).

        The applicants' complaint is rather that the Legislature

failed in the drafting of Section 6 of the 1982 Act to exercise this

power so as to benefit the applicants and that this failure

constituted arbitrary and unnecessary discrimination against them.

That the applicants were so discriminated against is supported by the

fact that even those persons who were in fact involved in relevant

litigation at the time of the promulgation of the 1982 Act could have

chosen to discontinue their proceedings before the courts and thereby

avail themselves of the benefit conferred by Section 6 (1) of that Act.

The applicants submit in this connection that the reference to the

"constitutional rights of any person" in Section 6 (2) related simply

to the right of any citizen to have an issue tried before the Irish

courts and to be protected from interference by the legislature in

those proceedings.

        As regards the suggested action for breach of an implied

statutory covenant as to title against the former owner of the lands

in question under Section 7 of the Conveyancing Act 1881, the

applicants point out that such a cause of action did not form part

either of their causes of complaint in the second Pine Valley case or

of their complaints to the Commission.  It is sufficient for the

purposes of Article 26 if the substance of the complaint under the

Convention has been raised in the domestic forum and in the present

application this was satisfied by the applicants' complaints against

Ireland in the second Pine Valley case, which were quite different from

those allegedly available against the former owner of the property

under Section 7 of the 1881 Act.  The applicants in any case deny that

there was any prospect of success for such an action on the grounds,

inter alia, that there is no authority for the proposition that there

exists an implied covenant under Section 7 of the 1881 Act as to the

validity of a purported outline planning permission and there is no

reason why a prudent purchaser should have included such a clause in

the contract for sale.  Furthermore, the domestic law relating to

quantum of damage suggests that even if such proceedings were to have

succeeded, the amount of damages recoverable would have been entirely

inadequate to compensate the applicants for the losses occasioned by

the failure of the Minister's outline planning permission.

        As regards the suggested action for unjust enrichment against

the former owner of the land in question, the applicants submit that

such an action was bound to fail since the essential element for the

repayment of money paid under a mistake of law is that one party is

in a position of advantage vis-à-vis the other so as to impose a duty

on that party to protect the other.  In the present case, the parties

were "in pari delictu" and the former owner would have had a complete

defence which is well grounded in a line of clear and established

case-law in both Ireland and the United Kingdom.

        In response to the Government's assertion that new factual

arguments are now being introduced before the Commission for the first

time, the applicants point out that the "special case" procedure

adopted at the suggestion of the Government precludes formal proof of

facts in the domestic courts and is confined to a consideration of

agreed points of law.  Many of these facts are, however, matters of

public record and many more which are now relevant - such as the

third applicant's personal circumstances or the sale price of the

property in question by the receiver of the second applicant -

occurred only after the Supreme Court decision.

        With respect to the failure to allege any malice or improper

motives on the part of the Minister in the domestic proceedings, the

applicants point out that this failure resulted solely from the fact

that in the absence of any proof of actual malice, they were unable to

make out a case of "misfeasance in public office" against the Minister.

At the same time, however, the applicants in introducing the case in

the Supreme Court referred to the possibility alluded to by

Mr.  Justice Henchy in the first Pine Valley case that the Minister in

that case may have been influenced "by political pressures or other

extraneous or unworthy considerations".

        Article 1 of Protocol No. 1

        The applicants point to the losses they have incurred as a

result of the court decision holding the outline planning permission

to be a nullity, and which have been detailed above.

        In connection with their complaint that they have been

unlawfully deprived of their possessions, the applicants point out that,

under Section 8 of the Local Government (Planning and Development) Act

1963, planning authorities are obliged to keep a public register of

all planning decisions, so that persons interested in purchasing land

may consult the register with a view to formulating a price which

reflects the development potential of the land.  It is argued in this

respect that where the circumstances justify reliance on a

representation made by a planning authority, an estoppel may arise

(Lever (Finance)) Ltd. v.  Westminster Corporation [1970] 3 All E.R.

496; Western Fish Products Ltd. v.  Penwith District Council [1981]

2 All E.R. 204).  That compensation would normally be paid to persons

suffering loss as a result of representations made by the State is

further confirmed by recent Irish decisions (e.g.  Webb v.  Ireland,

unreported judgment of Supreme Court, 16 December 1987;  McHugh v.

Commissioner of An Garda Siochana [1986] I.R. 228).  Having regard to

the unique nature of the applicants' claim to compensation, it cannot

be said under Irish law that there was any unduly onerous obligation

conflicting with the common good which would have justified the

refusal of that claim.

        The applicants reject the submission of the Government that

since they still enjoyed title to the land after the planning

permission was declared invalid, they could not be said to have

thereby been 'deprived' of their property.  This submission ignores

the distinction between the continued title to the land and the

abolition of their right to develop it, a distinction which is

recognised in Irish law as creating two separable interests (Frascati

Estates Ltd. v.  Marie Walker [1975] I.R. 177).  The importance of

this distinction is borne out in the present case by the fact that the

applicants effectively paid £500,000 for their right to develop the

land as compared with £50,000 for the title therein.

        As regards the Government's submission that the facts of the

present application may be distinguished from those in the case of

Sporrong and Lönnroth, the applicants submit that the prohibition on

construction has undoubtedly restricted the right to use their

property except in the most minimal sense and that it has resulted in

substantial financial loss.  In this respect, their interest in the

property has not only become "precarious and defeasible" but has been

effectively abolished.  As argued above, the failure to pay them

compensation in these circumstances has been disproportionate to any

alleged public interest, particularly having regard to the fact that

the legislature has relieved the burden in the case of all other

persons in a similar situation.

        The applicants further submit that the margin of appreciation

allowed to contracting States under Article 1 of Protocol No. 1 in

implementing planning policy cannot justify a breach of law by the

competent Minister, as distinct from a lawful refusal of planning

permission.  As stated above, even such a lawful refusal normally

occasions the right to compensation under Irish law.

        Finally, such a breach of law cannot be regarded as a

legitimate risk of a development venture.  On the contrary, the

purpose and content of the Planning Code demonstrates that those who

rely on the validity of a permission should be able to do so without

undertaking undue risks.

        Article 14 of the Convention

        As submitted above, the applicants' constitutional right to

property was interfered with by the breach of law occasioned by the

Minister in purporting to grant outline planning permission in the

knowledge that his decision would be registered and that persons such

as the applicants would be induced to rely thereon.  The applicants'

claim in this regard failed in the domestic courts so that this remedy

has now been exhausted.

        As regards the claim made in connection with Section 6 of the

1982 Act, the claim is that this provision was drafted in such a way

as to unjustly and arbitrarily discriminate against the applicants by

excluding them from the benefit of retrospective validation of their

planning permission.  As argued above, the clear meaning of Section

6 (1) is that at all times, including that period when the issue

raised by Pine Valley was pending before the Supreme Court, the

outline permissions were to be regarded as valid - the very thing

which the Supreme Court in the first Pine Valley case said it was not.

This is the inescapable meaning of Section 6 (1), and it follows from

the decision in the case of Buckley v. the Attorney General that any

application of that Section to the Pine Valley decision would be

unconstitutional.  For this reason that decision was clearly excluded

from the benefit of Section 6 (1) by Section 6 (2).  Of the three

judges who commented on the point, all three accepted that this was

the case.  Furthermore, the judgment of Mr.  Justice Lardner refers to

the fact that the Government itself accepted before the Supreme Court

that Section 6 (1) did not apply to the applicants.  It is to be noted

that even those persons whose litigation was pending before the courts

at the time of the enactment of the 1982 Act could have decided to

discontinue proceedings in order to gain the benefit of Section 6 (1)

of the 1982 Act.

THE LAW

        The applicants complain inter alia that they were denied

compensation for a substantial reduction in the value of their

property following a finding by the courts that a grant of outline

planning permission in respect of that property was invalid.

They submit that the failure to award compensation after having relied

on the validity of the outline planning permission was tantamount to

either a deprivation of property or a control of the use of property

in breach of Article 1 of Protocol No. 1 (P1-1) to the Convention.  They

further complain that they are the victims of discrimination in the

enjoyment of their property rights contrary to Article 14 (Art. 14),

since they were the only property owners excluded from the

retrospective validation of their permission conferred by Section 6(1)

of the Local Government (Planning and Development) Act 1982.  Finally

they allege that they have been denied an effective remedy under Irish

law in breach of Article 13 (Art. 13) of the Convention.

        Article 25 (Art. 25) of the Convention

        The Government submit that all three applicants cannot claim

to be victims at the same time.  They point out that the first

applicant sold the property to the second applicant for an amount

equivalent to the original purchase price and thus cannot be said to

have incurred any loss.  Further, the Government question whether the

application is validly before the Commission in respect of the first

two applicants in view of the fact that the first applicant is likely

to be struck off the register of companies and that the second

applicant is in receivership.  Finally, they submit that the

applicants cannot be considered victims since they made no application

for compensation under the relevant provisions of the Local Government

(Planning and Development) Act 1963.

        The applicants maintain that all three applicants have

incurred losses and should thus be regarded as victims for purposes of

Article 25 para. 1 (Art. 25-1) of the Convention.

        This provision, so far as is relevant, provides:

"The Commission may receive petitions ... from any

person, non-governmental organisation or group of

individuals claiming to be the victim of a violation by one

of the High Contracting Parties of the rights set forth in

this Convention ..."

        The Commission notes that both a company and a majority

shareholder can be regarded as victims within the meaning of this

provision (see Kaplan v. the United Kingdom, Comm.  Report 17.7.80,

D.R. 21 p. 5 at p. 23).  It further notes that the proceedings for

damages before the national courts were brought (after an amended

statement of claim) by all three applicants and that no distinction

was made between them by the courts in the examination of their

claims.

        The Commission further notes that it is not contested by the

Government that the third applicant is the sole shareholder of the

second applicant which has been in receivership since 1985.  Nor is it

contested that the second applicant is the parent company of the first

applicant.  In these circumstances the Commission considers that it is

open to the third applicant to lodge a petition under Article 25

(Art. 25) of the Convention on behalf of the two companies of which he

is sole shareholder, irrespective of the financial standing of the

companies concerned.  The Commission observes that it is not necessary

at the admissibility stage to determine whether and to what extent the

applicants have suffered financial loss.  It is sufficient for Article

25 (Art. 25) that all three applicants were directly affected by the

matters complained of.

        Finally the Commission notes that it is clear, inter alia from

the judgment of the Pine Valley case, that compensation was not

available under the 1963 Act in respect of an outline planning

permission which had been declared a nullity.

        Exhaustion of domestic remedies - Article 26 (Art. 26) of

        the Convention

        The Government further submit that the applicants have failed

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

Convention which provides as follows:

"The Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

months from the date on which the final decision was taken."

        The Government contend that the applicants failed to pursue the

normal remedy available under Irish law in respect of their complaints

namely to seek a declaration from the courts that Section 6(1) applied

to them or, if it did not, that Section 6 or part of it, was pro tanto

invalid under the constitution on the grounds that it constituted an

unjust attack on their property rights and discriminated unfairly

against them (Articles 43 and 40.1 of the Constitution).  In addition

the Government maintain that it would have been open to the applicants

to sue the former owner of the land for breach of an implied covenant

as to title or for unjust enrichment.

        The applicants submit inter alia that the two latter remedies

would have offered no prospects of success under Irish law.  As

regards the possibility of seeking a declaration they point out that

it was clear from the judgment of the Supreme Court in their case

that Section 6(1) did not apply to them and that challenging the

constitutionality of Section 6 could not have succeeded or would have

been futile since the planning permission would have expired by the

time the proceedings had terminated.

        The Commission recalls that only remedies which are likely to

provide redress for the applicant's complaints need be taken into

account under Article 26 (Art. 26) (see Eur.  Court H.R., Van Oosterwijck

judgment of 6 November 1980, Series A No. 40, pp. 13-14, para. 27).

In particular the existence of such remedies must be sufficiently

certain not only in theory but also in practice, failing which they

will lack the requisite accessibility and effectiveness.  Finally, it

falls to the respondent State to establish that these conditions are

satisfied (see Eur.  Court H.R., Johnston and Others judgment of

18 December 1986, Series A No. 112, p. 22, para. 45).

        As regards the possibility of seeking a declaration that the

applicants were entitled to the benefit of Section 6 (1), the

Commission observes that three judges of the Supreme Court have

indicated that the applicants were excluded from such benefit by the

operation of Section 6(2) of the 1982 Act (see above, pp. 5- 6).

Moreover, in the proceedings before the courts both the applicants and

the respondents in the second Pine Valley case appear to have accepted

that Section 6(2) excluded the applicants (see judgment of Mr.  Justice

Lardner, p. 6).

        As regards the Government's claim that the applicants could

have sought a declaration that Section 6 or part of it was

invalid under the constitution on the basis that it contravened their

property rights and discriminated against them, the Commission notes the

judgment of Mr.  Justice Lardner in the Pine Valley case (see above pp.

6-7) rejecting the argument that there was an unjust and

discriminatory attack on their property rights.  Similarly, Mr.  Justice

Henchy (with whom Mr.  Justice Griffin agreed) found that no injustice

had been done to Pine Valley by the discriminatory effect of Section 6

(see above, pp. 5-6).  Both Mr.  Justice Lardner and Mr.  Justice Henchy

indicated that the purpose of Section 6 (2) was to avoid an

unconstitutional invasion of the judicial domain and to respect the

determination of the courts and the constitutional rights of both

parties in the Pine Valley case (see above, p. 5-7).

        The Government have argued that these statements by members of

the Supreme Court concern legal issues which were not argued before

the Court and ought to be regarded as obiter dicta, particularly

since it is clear that the legislature is free to reverse decisions

of the Supreme Court.  They point out, with reference to previous

case-law of the Supreme Court, that the legislature is only restricted

from interfering with disputes pending before the courts.

Moreover, it is clear from the explanation given by the responsible

Minister in the debate before Seanad Eireann (Upper House of

Parliament) that Section 6(1) was drafted to preserve the rights of

parties in pending proceedings as opposed to proceedings which had

terminated.

        The Commission considers that the observations made by

individual judges were related to the general context of the dispute

before the Supreme Court and clearly support the applicants'

contention that pursuit of the above remedies would have been futile.

        Against this background the Commission considers that the

Government have not shown that these remedies would have been likely to

provide redress for the applicants' complaints.

        Finally, as regards the remedies for breach of covenant and

unjust enrichment, the Commission notes that there exists substantial

doubt as to whether these suggested actions would have provided a

remedy in respect of any losses incurred by the applicants due to the

invalidity of the outline planning permission.  In these circumstances

the Commission is of the opinion that these remedies lack the requisite

certainty for purposes of Article 26 (Art. 26).

        The Commission concludes that the applicants, in their choice

of remedy, have done all that could reasonably be expected of them and

have thus exhausted their domestic remedies as required by Article 26

(Art. 26) of the Convention.

        Article 1 of Protocol No. 1 (P1-1) and Articles 13 and 14

        (Art. 13, 14) of the Convention

        The Government submit inter alia that there was no

interference with the applicants' property rights under Article 1 of

Protocol No. 1 (P1-1).  They state that the applicants purchased

agricultural land with a view to developing it for industrial purposes

and therefore must be prepared to accept the risks which are attached

to a speculative venture such as the possible annulment of an outline

planning permission.  Moreover, this provision does not require the

Government to compensate the purchaser in such a situation.

        The Government further contend that no question of

discrimination arises in the present case since the applicants were

not, in fact, excluded from the benefit of Section 6(1) of the 1982

Act.  They also maintain that the applicants had an effective remedy

under Irish law as required by Article 13 (Art. 13) of the Convention.

        The applicants complain that as a result of the decision of

the Supreme Court of 5 February 1982 the market value of their

property has been reduced to £50,000.  They submit that there has

been an unjustified control of the use of their property tantamount to

an expropriation and that they ought to have received compensation for

the losses flowing directly from the Ministers' invalid decision in

1979.  They further complain under Article 14 (Art. 14) of the

Convention that they have been unfairly discriminated against since

others similarly affected by this decision of the Supreme Court had

their planning permissions and approvals retrospectively validated by

Section 6(1) of the 1982 Act.  Finally, they submit that Irish law has

denied them an effective remedy as required by Article 13 (Art. 13) of

the Convention.

        The Commission considers, in the light of the parties'

submissions, that the application as a whole raises complex issues of

law and fact under the Convention, the determination of which should

depend on an examination of the merits of the application.

        It concludes that the application is not manifestly

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

the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE

        without prejudging the merits of the case

Secretary to the Commission         Acting President of the Commission

    (H. C. KRÜGER)                          (J. A. FROWEIN)