AS TO THE ADMISSIBILITY OF

Application No. 13135/87

by S. and Others

against the United Kingdom

        The European Commission of Human Rights sitting in private on

4 July 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 24 April 1987 by S. and

Others against the United Kingdom and registered on 11 August 1987 under file

No. 13135/87;

        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 first applicant, S. is a British citizen born in 1911 and

trustee of the Discretionary Trust Fund, which owns the K. Estate.

The second applicant, F., is a British citizen born in 1970 and is a

beneficiary of the trust.  The third applicant, S., a British citizen

born in 1936, is the mother and curator-at-law of the second

applicant.  The fourth applicant, T., is a British citizen born in

1966 and is a beneficiary of the trust.  The fifth applicant, R., is a

British citizen born in 1968 and is also a beneficiary of the trust.

The applicants all reside at C. Estate, S., and are represented before

the Commission by Donald Ross MacDonald, a solicitor practising in

Glasgow.

        The facts as submitted by the applicants may be summarised as

follows.

        The K. estate is a residential, agricultural and sporting

estate in the Highlands of Scotland; about 10 miles long and 2 miles

wide.  It comprises K. House and grounds, B. and L. Farms and hill

ground used for stock grazing and sporting.

        Part of the land belonging to the trust (75 acres out of an

estate of 10,000 acres) was acquired by the Secretary of State for

Scotland under two compulsory purchase orders in order to carry out

re-alignment of the A9 trunk road from P. to I.  This land was vested

in the Secretary of State by General Vesting Declaration on 9 and 16

April 1979.

        Pursuant to the purchase, the Highland Regional Authority have

constructed a new section of the A9, with associated link roads,

bridges, accommodation roads and intersections.  Both sides of the new

roads have been fenced in the course of the works.

        The applicants and the Secretary of State's valuers failed to

reach agreement as to the compensation payable, and the applicants

applied to the Lands Tribunal for Scotland to ascertain the amount

of compensation.

        Two of the central issues brought before the tribunal

concerned, firstly, compensation for cost of maintaining and replacing

in future the accommodation works and the fencing erected along the

new roads running through the estate, and, secondly, compensation for

loss of amenity to the estate from the existence of the new roads.

The applicants claimed £335,696 in compensation, £147,242 of which

related to costs of future maintenance.

        The tribunal consisting of Lord Elliott and Mr.  T. Finlayson

Frics, heard evidence on 3-14 February 1986, on 16 April 1986 and

made inspection of the relevant portions of the estate on 17-18 April

1986.  The applicant was represented by a Q.C. and junior counsel as

was the Secretary of State for Scotland as the acquiring authority.

Both parties called expert witnesses.

        The statutory provisions governing compensation in issue

before the tribunal were as follows:

        Section 61 of the Land Clauses (Consolidation) (Scotland)

Act 1845:

        "In estimating the purchase money or compensation to be

        paid by the promoters of the undertaking, in any of the

        cases aforesaid, regard shall be had not only to the value

        of the land to be purchased or taken by the promoters of

        the undertaking, but also to the damage, if any, to be

        sustained by the owner of the land by reason of the

        severing of the lands taken from the other lands of such

        owner or otherwise injuriously affecting such lands by

        the exercise of the powers of this or the special Act,

        or any other Act incorporated therewith."

        This section is supplemented by Section 41 of the Land

Compensation (Scotland) Act 1973 which includes damage due to the

subsequent use of the land acquired.

        Section 2(2) of the Acquisition of Land (Assessment of

Compensation) Act 1919 introduced under "Rule 2" the open market

criterion in place of "value to owner" when assessing the value of

land.  It also applies when assessing the depreciation in value of

retained land.  Section 2(6) ("Rule 6") however provided that "the

provisions of "Rule 2" shall not affect the assessment of compensation

for disturbance or any other matter not based directly on the value of

land".  So the latter conferred no new rights but merely confirmed the

continuance of pre-existing rights to claim for "disturbance and other

matters" of consequential loss.

        The applicants advocated to the tribunal compensation on the

basis of an inflation-proofed "sinking fund" which would provide

income to deal with repairs as and when they occurred in the future.

They advocated that "Rule 6" rather than "Rule 2" of the relevant

legislation was applicable in their case, namely that compensation

should not be calculated with reference to market value.  On

6 November 1986, however, the tribunal decided that the compensation

for future maintenance should be calculated by reference to the

overall diminution in the market value of the retained land, taking

into account the likely future expenditure involved as a guide to the

amount by which notional purchasers would be likely to lower their

offers.  They found that future maintenance fell under the heading of

injurious affection of "Rule 2" rather than consequential loss of

"Rule 6".  In assessing the depreciation of value the tribunal

examined each item of claim related to the burden of future

maintenance and accepted the valuation approach of the district valuer

giving evidence for the Secretary of State, who calculated

compensation according to the actual prime costs of the accommodation

works.  The tribunal noted that this approach had already been

regarded as acceptable by all other owners and surveyors who had

settled claims concerning other stretches of the new A9.  The

tribunal awarded the sum of £38,100 to the applicants in respect of

this item of claim.  The tribunal also found that there was no loss of

general amenity to the estate.  The tribunal had inspected the estate

and found that, having regard to the effect which the old A9 had on

the property and the problems which improving it would have posed, the

building of the new A9 caused no general loss of amenity to the estate

as a whole.  They did however award sums for loss of amenity in

respect of certain specified properties on the estate which they did

find to be adversely affected by the site of the new road.  In total,

the applicants were awarded £59,830 compensation in respect of their

contested items of claim.  Compensation in respect of certain other

items of claim apparently had been agreed by the parties before the

hearing and these items were not considered by the tribunal.  While

appeal lies to the Court of Session on points of law, the applicants

contend that the disputed determinations were determinations of fact

against which no appeal is possible.

COMPLAINTS

1.      The applicants complain of a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention.

        The applicants complain that the tribunal's assessment of

compensation as depreciation in the market value of land at a

particular date makes no allowance for inflation in the cost of future

repair-works and also results in liability to capital gains tax.  The

method chosen by the tribunal is alleged by the applicants to be

arbitrary and illogical and fails to make provision or take into

account the likely future repair-needs.  The applicants also submit

that there is a substantial physical difference caused to the estate

by the construction of the new roads and that the finding of the

tribunal that there was no general loss of amenity is a substantial

factual error.

2.      The applicants complain that the absence of a possibility to

appeal is a violation of Article 6 (Art. 6) of the Convention.  The applicants

also complain that the absence of such appeal and of an effective remedy for

their complaints constitutes a violation of Article 13 (Art. 13) of the

Convention.

THE LAW

1.      The applicants complain that they have been awarded an

arbitrary and inadequate amount of compensation by the Lands Tribunal

in respect of the compulsory purchase of part of their land.  They

allege a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention

which in the first paragraph 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 Commission finds that the applicants were deprived of

their possessions within the meaning of the second sentence of

paragraph 1.  The Commission finds no evidence to suggest that the

purchase was not 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 applicants were deprived of their 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 carry out

repairs to and realignment of a major trunk road.  The Commission is

satisfied that in these circumstances the compulsory purchase measures

pursued a legitimate aim in the public interest of maintaining and

improving public highways.

        The case-law of the Commission and 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 Commission finds that this principle is also applicable in respect of

compensation for other pecuniary loss or burdens imposed as a result

of compulsory purchase measures.

        The applicants complain in this respect that the tribunal's

assessment of compensation was inadequate, illogical and arbitrary.

They had argued before the tribunal that compensation in respect of

their obligation in future to maintain and repair fencing should have

been provided on the basis of an inflation-proofed sinking fund which

would provide income to pay for repairs as they occurred.  The

tribunal however had chosen to assess compensation in reference to the

loss of market value suffered by the estate, taking into account the

likely future expenditure involved in maintenance of fencing and other

works as a guide to the amount by which notional purchasers would be

likely to reduce their offers.  Consequently, the tribunal awarded

£38,100 in respect of this item of compensation instead of the

£147,242 which the applicants claimed.  The applicants complain that

this method of assessment is not only inadequate and arbitrary, but

also does not take into account inflation and makes them liable to

capital gains tax.  The applicants further contend that the tribunal

erred in finding no general loss of amenity to the estate and in

awarding no compensation for this.

        The Commission notes that the tribunal considered the

applicants' suggested method of compensation but decided instead to

use estimated costs of repair and renewal as a reasonable yardstick to

the depreciation in value of the land taking into account the actual

prime cost of the accommodation works in question, an approach

accepted by other owners affected by the new A9.  The Commission does

not find that this method of assessment is in principle contrary to

Article 1 of Protocol No. 1 (P1-1).  The Commission also recalls that absence

of any allowance for inflation, and incidence to capital gains tax were found

by the Court in the Lithgow case (Lithgow and Others judgment, loc. cit. pp.

58-61, paras. 144-147 and 156) to fall within the margin of appreciation

accorded to High Contracting Parties.  As regards the tribunal's decision not

to award any compensation at all in respect of general loss of amenity to the

estate, the Commission notes that the tribunal had itself inspected the estate

and had found that, having regard to the problems existing in respect of the

old A9 which had crossed the estate, no general loss of amenity had been

suffered by the estate as a result of the new A9.  Moreover the tribunal did

award various sums in compensation in respect of parts of the estate which

could be said to have been made less attractive by the new works.  Having

examined the facts of the case, the Commission finds that the terms of the

compulsory purchase of the applicants' property did not infringe the principle

of proportionality.

        Consequently, the taking of the applicants' property was

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 27 para. 2 (Art. 27-2)

of the Convention.

2.      The applicants complain that they are unable to appeal against

the decision of the Lands Tribunal and invoke Articles 6 and 13 (Art. 6,

Art. 13) of the Convention.

        The Commission notes that the Lands Tribunal is a judicial

body set up by statute with jurisdiction in specified areas of dispute

in land valuation.

        The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention does not require the Contracting States to set up courts of

appeal and that the case-law of the Court and the Commission

establishes that Article 6 (Art. 6-1) does not guarantee an appeal from the

judgments of courts (see e.g.  Eur.  Court H.R., Delcourt judgment of

17 January 1970, Series A no. 11, p. 13, para. 25).  It follows that

the applicants' complaint of an inability to appeal must be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention

        Article 13 (Art. 13) of the Convention guarantees a right to a remedy

before a national authority when an individual has an arguable claim of a

violation of the Convention.  When the alleged violation concerns the decision

of a court the right to a remedy would appear to require a remedy before a

higher court.  However, in light of the established case-law concerning Article

6 (Art. 6) of the Convention as stated above and Article 2 of Protocol No. 7

(P7-2) which expressly accords the right of review by a higher tribunal in

criminal matters, Article 13 (Art. 13) cannot be interpreted as according such

a right (see e.g.  No. 11508/85, Dec. 17.7.86, to be published in D.R.).

Consequently, this provision cannot be relied on as affording a right of appeal

from an inferior court to a superior court.

        The Commission notes that the applicants' complaint of a

violation of Article 1 of Protocol No. 1 (P1-1) arises from the decision of

the Lands Tribunal of Scotland.  The Commission accordingly finds that

their complaint of being unable to appeal against this decision

discloses no appearance of a violation of the Article 13 (Art. 13) of the

Convention.  It follows that this complaint 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.

Deputy Secretary to the Commission       President of the Commission

            (J. RAYMOND)                        (C.A. NØRGAARD)