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AS TO THE ADMISSIBILITY OF

Application No. 14265/88

by John Barry PINCOCK

against the United Kingdom

The European Commission of Human Rights sitting in private on

19 January 1989, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 23 June 1988

by John Barr PINCOCK against the United Kingdom and registered on

3 October 1988 under file No. 14265/88;

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 British citizen born in 1944 and resident

in St. Helens, Merseyside. The facts as submitted by the applicant

may be summarised as follows.

On 2 January 1983, the applicant's father died, leaving to the

applicant his terraced house at 3 Edgar Street, St. Helens. The

applicant sought to sell the house, which was in good condition but

discovered that 3 private purchasers lost interest since the house was

in an area in respect of which the local authority (St. Helens Borough

Local Council) had had plans to build new roads since the 1960's.

Plans in the Planning Department of the local authority indicated

various possible road schemes, one of which ran across the property

and three of which were in close proximity. No decision was taken for

many years in relation to the road scheme apparently as no money was

available to fund the re-development.

The applicant alleges that as a result of this situation

properties in the area were left unsold and unoccupied, subject to

vandalism and dilapidation.

The local authority eventually decided to implement its road

development plans and on 11 July 1988 issued a Compulsory Purchase

Order for the area including 3 Edgar Street for the purpose of

building a link road to the motorway to bypass the hospital and

residential housing in the area. It also classified the houses in the

area as unfit for human habitation and in its report on 3 Edgar Street

stated that the property had not been externally well-maintained and

suffered from perished brick work and rotten woodwork.

The applicant disagreed with this description and applied to

the Secretary of State on 26 August 1988 for a payment for good

maintenance, submitting inter alia that any repairs needed were

minor. No reply has yet been received to this application.

Since the applicant did not occupy the premises, he will be

entitled under the compulsory purchase legislation only to receive the

site value of the property which he estimates at £100-150. If not

subject to the order, the applicant considers the property would be

worth £15-20,000. If he had occupied the premises, he would have been

eligible to claim supplementary compensation plus an amount for

disturbance.

COMPLAINTS

The applicant complains that policy of the local authority has

interfered with his right to peaceful enjoyment of his possessions

contrary to Article 1 of Protocol No. 1. As a result of their delay

and indecision he was unable to sell the property for its market value

and will now receive little by way of compensation for the compulsory

purchase. He also alleges that there is no legal remedy available to

him in respect of his complaints.

THE LAW

1. The applicant complains that he was unable to sell his

father's house prior to the compulsory purchase order and that

subsequent to the order, he will receive an inadequate amount of

compensation. He invokes Article 1 of Protocol No. 1 (P1-1) which provides:

"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."

Insofar as the applicant complains of being unable to sell his

father's property, the Commission recalls that no prohibition on sale

was in force and that there were no formal plans or decisions in

existence with reference to development in the area in which the

property was situated. The Commission notes that the local authority

had been considering the possibility of a road scheme since the 1960's

and that various possibilities in different locations had been drawn

up in the Planning Department.

The Commission finds that in the circumstances of the case

these informal and internal planning discussions cannot be held to

constitute an interference with the applicant's peaceful enjoyment of

his property within the meaning of the first sentence of Article 1 of

Protocol No. 1 (P1-1) or a control of the use of property within the meaning

of the second paragraph of that article.

The applicant has also complained that following the

compulsory purchase order, he will receive an inadequate amount of

compensation, since as an owner not in occupation he will only be

entitled to site value.

The Commission finds that the compulsory purchase order

constitutes a deprivation of possessions within the meaning of the

second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1).

The Commission however finds no evidence to suggest that the

purchase is not being carried out subject to the conditions provided

for by law and, as regards the general principles of international

law, the Commission recalls that this condition does not apply to a

taking by a State of the property of its own nationals (Eur. Court

H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p.

50, para. 119). The Commission must therefore determine whether on

the facts of this particular case the applicant is being deprived of

his property in the public interest. The Commission recalls that

because of their direct knowledge of their society and needs, the

national authorities are in principle better placed to appreciate what

is in "the public interest". In their assessment in this respect, the

national authorities enjoy a margin of appreciation. The Commission

notes that the compulsory purchase orders were implemented in order to

build a link road to a motorway to by-pass the hospital and

residential housing in that area. The Commission is satisfied in

these circumstances that the compulsory purchase measure pursues a

legitimate aim in the public interest of improving the public highway

system and relieving residential areas of heavy traffic.

The case-law of the Commission and the Court establishes that

not only must a measure depriving a person of his property pursue a

legitimate aim, but there must also be a reasonable relationship of

proportionality between the means employed and the aim sought to be

realised. The Court has also stated that this requires that a fair

balance be struck between the demands of public interest of the

community and the requirements of the protection of the individual's

fundamental rights. This balance will not be found where the person

concerned has to bear an individual and excessive burden (see e.g.

Lithgow and Others judgment, loc. cit., p. 50, para. 120).

Compensation terms are material to the assessment whether such

a fair balance has been struck and whether or not a disproportionate

burden has been imposed on the person deprived of his property. The

taking of property without payment of an amount reasonably related to

its value would normally constitute disproportionate interference

which could not be considered justifiable under Article 1 of Protocol

No. 1 (P1-1) (Lithgow and Others judgment, loc. cit., p. 50, para. 120).

The applicant complains that he will only receive site value

for his property instead of the £15-20,000 which he estimates is its

real value.

The Commission recalls in this respect however that the

applicant's property has been declared as unfit for human habitation

and finds that the applicant has not substantiated his claim as to the

estimate value of the property or established that the site value will

not reflect the value of the property. The Commission also notes that

if the applicant had occupied the premises, he would have been

eligible for supplementary compensation including disturbance. The

Commission finds that the policy of compensating occupiers of property

more generously than non-occupying owners is not in principle contrary

to Article 1 of Protocol No. 1 (P1-1) and falls within the Contracting

States' margin of appreciation. The Commission also notes that the

applicant has the possibility of applying to the Secretary of State

for additional compensation for previous maintenance of the property.

In light of these circumstances, the Commission finds that the

terms of the compulsory purchase do not infringe the principle of

proportionality. Consequently, the compulsory purchase is justified

under the second sentence of the first paragraph of Article 1 of

Protocol No. 1 (P1-1).

It follows that this part of the application must be rejected

as manifestly ill-founded within the meaning of Article 1 of Protocol

No. 1 (P1-1).

2. The applicant also complains that he does not have an

effective remedy in respect of his complaints.

Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

Article 13 (Art. 13) does not guarantee a remedy whereby a law as such

can be challenged before a domestic organ (see Eur. Court H.R., James

and Others judgment of 21 February 1986, Series A no. 98, p. 47, para.

85). Moreover, Article 13 (Art. 13) does not require a remedy under domestic

law in respect of any alleged violation of the Convention. It only

applies if the individual can be said to have an "arguable claim" of a

violation of the Convention (Eur. Court H.R., Boyle and Rice judgment

of 27 April 1988, Series A no. 131, para. 52).

Insofar as the applicant complains of the effect of the

compulsory purchase legislation, it follows that Article 13 (Art. 13) does not

guarantee a remedy for such complaints. Insofar as the applicant

complains of being unable to sell his property as a result of the

local authority's policy, the Commission recalls that it has found

above that the facts of the case failed to disclose any interference

with the applicant's right to peaceful enjoyment of his possessions

or any control of the use of these possessions. The Commission also

finds on an examination of the complaint as it has been submitted that

the applicant cannot be said to have an "arguable claim" of a

violation of Article 1 of Protocol No. 1 (P1-1).

It follows that this part of the application must be dismissed as

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 INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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PINCOCK v. THE UNITED KINGDOM

PINCOCK v. THE UNITED KINGDOM

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