Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12736/87

by Antonio MAGGIULLI

against the United Kingdom

The European Commission of Human Rights sitting in private on

5 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

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 1 August 1986

by Antonio MAGGIULLI against the United Kingdom and registered on

17 February 1987 under file No. 12736/87;

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 applicant is an Italian citizen born in 1931 and resident

in London. He is represented by Jennifer Home, a barrister practising

in London. The facts as submitted by the applicant may be summarised

as follows.

The applicant was owner of premises at 21 High Road London N15

and let rooms in the property from time to time. He apparently

retained a ground floor room in the house for his own use. By letter

dated 16 May 1983, the London Borough of Haringey ("Haringey")

informed the applicant that the property was below certain minimum

standards and in need of substantial repair and scheduled a list of

necessary works to be done. The applicant replied with certain

proposals as to the work and Haringey replied on 17 August 1983

warning the applicant that resort might be had to powers of compulsory

purchase if progress towards effecting the necessary repairs was

unsatisfactory. Subsequently, on 5 December 1984, Haringey issued a

compulsory purchase order, to which the applicant made formal

objection.

The applicant succeeded in obtaining planning permission to

carry out the necessary improvements and had applied for a grant from

Haringey to finance them. Haringey however informed the applicant that

a grant could not be forthcoming until the three persons occupying the

property had vacated the premises. (The status of these three

occupiers as tenants or licensees was unclear.) The applicant offered

the three occupants alternative accommodation in another of his

properties but they refused to leave. The applicant instituted

proceedings against the three occupiers to obtain vacant possession.

On 10 April 1985 a public local enquiry was held in respect of

the compulsory purchase order. By letter dated 15 April 1985 Haringey

issued an undertaking that if the applicant commenced the works on the

property within six months and completed them within twelve months,

they would not implement the compulsory purchase order, if confirmed.

The undertaking was issued on the basis that the time-limit would not

be rigidly applied if there were good reasons for allowing extra time

and that the owner would take reasonable steps to obtain vacant

possession before starting the work.

The Inspector who presided over the enquiry found that the

property had a history of action by the environmental health

department and non-compliance with statutory notices, and was in a

state of substantial disrepair. He recommended that the order be

confirmed and made reference to the undertaking by the local

authority. He concluded as follows:

"The owner has demonstrated his willingness to carry out

the works of conversion to 4 self-contained flats and

should be given the opportunity to do so. I appreciate

his desire to occupy one of the flats himself.

Assuming vacant possession he should have little difficulty

in meeting the target dates referred to in the council's

undertaking in the event of the order being confirmed.

Much hinges upon the decision of the Edmonton County Court

as to the status of the 3 occupants. If the court decides

in favour of the owner, upon obtaining vacant possession

which date cannot be predicted with any certainty, the

owner will be in a position to proceed with the conversion

works. Should the decision of the court be unfavourable

to him, failing confirmation of the order the eventual

outcome would be much less certain.

The council's explanation that the times referred to in

their undertaking are not intended to be applied inflexibly

is important because they will need to take into account

time taken up outside the owner's control in obtaining

vacant possession.

In its present unsatisfactory condition 21 High Road

conflicts with the objectives of the housing action area,

and this situation could be remedied by implementation of

the council's proposals following confirmation of the order.

It seems to me that the council's undertaking safeguards the

owner's position in the event of the court deciding in his

favour and otherwise offers him reasonable scope for carrying

the works into effect. In these circumstances, bearing in

mind the desirability of ensuring that the existing

unsatisfactory conditions do not continue indefinitely,

in my opinion it would be appropriate to confirm the order."

The Secretary of State confirmed the order on 11 June 1985.

On 2 August 1985, the applicant's claim for possession against

the three occupiers was dismissed by the County Court on the ground

that they were tenants. The applicant issued fresh proceedings on,

inter alia, grounds of non-payment of rent but on 12 November 1985 the

action was adjourned in order for the tenants to seek legal aid.

By letter dated 1 November 1985, Haringey notified the

applicant that, since six months had expired since the enquiry without

any commencement of work and since there were no good reasons for

allowing the applicant further time, they intended to implement the

compulsory purchase order.

On 13 November 1985, Haringey issued a Notice of Entry and on

17 January 1986 took possession of the property.

The applicant made an application for leave for judicial

review alleging inter alia that Haringey had wrongly exercised their

statutory powers in implementing the compulsory purchase order. Leave

was refused by a single judge of the High Court on 8 January 1986 and

a renewed application before the Divisional Court refused on

23 January 1986. The applicant appealed to the Court of Appeal but

his appeal was dismissed on 14 April 1986.

The applicant will receive compensation for the compulsory

purchase of the property, although his counsel advises that he will

receive less since the property is encumbered with tenants and is in

disrepair.

COMPLAINTS

The applicant complains that his rights under Article 1 of

Protocol No. 1 to the Convention have been infringed by the

implementation of the compulsory purchase order. He complains that he

did everything possible to obtain vacant possession in order to begin

work on the property and that Haringey acted unreasonably and in bad

faith in implementing the compulsory purchase order. He complains

that the principle of proportionality has not been observed in the

case. He also complains that he will receive less compensation than

he would have if the property had been unoccupied.

The applicant also complains that his rights under Article 8

of the Convention have been infringed since he was owner-occupier of

the property, which constituted his main residence.

THE LAW

1. The applicant complains of the implementation of the

compulsory purchase order on his property. He invokes Article 1 of

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

The Commission finds that the implementation of the compulsory

purchase order in respect of the applicant's property prima facie

falls within the second sentence of the above provision, as

constituting a "deprivation" of possessions. The Commission must

therefore determine whether on the facts of this particular case the

applicant was deprived of his property in the public interest and

subject to the conditions provided for by law.

The Commission finds first of all that the compulsory purchase

order was issued and confirmed pursuant to the relevant legislation.

Though the applicant sought to challenge the implementation of the

order through judicial review, his application was dismissed by the

High Court and Divisional Court and the Commission finds no evidence

that the compulsory purchase was not effected subject to the

conditions provided for by law.

The question remains whether the compulsory purchase complied

with the requirement of "public interest". The Commission recalls

that because of their direct knowledge of their society and its needs,

the national authorities are in principle better placed to appreciate

what is in "the public interest" and accordingly here, as in other

fields to which the safeguards of the Convention extend, the national

authorities enjoy a certain margin of appreciation; moreover, the

notion of "public interest" is necessarily extensive (Eur. Court H.R.,

James and Others judgment of 21 February 1986, Series A no. 98, p. 32

para. 46). The Commission notes that Haringey sought the compulsory

purchase order as part of its policy in improving the local

accommodation and in eradicating unsatisfactory housing in its area.

The Commission is satisfied in these circumstances that the

policy of Haringey pursued a legitimate aim in the "public interest"

in the improvement of housing. However, the case-law of the Commission

and the Court establish 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 (James and Others judgment

loc. cit. p. 67 para. 135). In the case of Sporrong and Lönnroth

(Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,

Series A no. 52) the Court stated with regard to Article 1 (Art. 1), first

sentence that a fair balance must be struck between the demands of

public interest of the community and the requirements of the

protection of the individual's fundamental rights (loc. cit. p. 26

para. 69). This balance would not be found where the person concerned

had to bear an individual and excessive burden (loc. cit. p. 28

para. 73).

The Commission recalls that in the present case the

applicant's property was in substantial disrepair and that it had

already been the subject of numerous statutory notices. The applicant

was informed by letter of 16 May 1983 that his property was below

certain minimum standards and that improvements had to be done. He

was also warned by letter dated 17 August 1983 that a compulsory

purchase order might be sought if progress was unsatisfactory. The

Commission recalls that over a year elapsed before on 5 December 1984

Haringey issued a compulsory purchase order. At the local enquiry

held on 10 April 1985, it appeared that Haringey were willing to allow

the applicant a further six months to commence works on the property

but that, on a continued lack of progress, Haringay implemented the

compulsory purchase order on 13 November 1985.

The Commission notes that the applicant faced significant

obstacles in effecting the necessary repairs, including in particular

the problem of the three tenants who refused to move and in respect of

whom the applicant had instituted two sets of legal proceedings. The

Commission is satisfied however that these mitigating circumstances

were taken into account by the planning inspector and Haringey in

reaching their decision and that reasonable allowance was made to the

applicant in balancing his interests against the requirements of

housing policy. However, in view of the continued delays, which

showed no sign of coming to an end in the near future, the Commission

finds that, in deciding not to adjourn further the implementation of

the compulsory purchase order, the local authority did not infringe

the principle of proportionality as stated above.

In these circumstances, the Commission finds no appearance of a

violation of Article 1 of Protocol No. 1 (P1-1). It follows that this part of

the application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains that his rights under Article 8

(Art. 8) of the Convention have been violated since he was owner-occupier of

the expropriated property.

Article 8 (Art. 8) of the Convention provides that:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission recalls that the applicant apparently retained

a ground floor room in the property for his use and that the applicant

had the intention of occupying one of the flats when the property had

been converted. In light of these circumstances, the Commission is

not satisfied that the applicant has established that the property in

question constituted his home. However, even assuming that it did so,

the Commission has already considered the conformity of the

expropriation with the requirements of Article 1 of Protocol No. 1

(P1-1) and concludes that any interference would be justified as being

in accordance with law and as necessary in a democratic society for

the protection of health and the rights of others, within the meaning

of paragraph 2 of Article 8 (Art. 8-2).

It follows that this complaint is 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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MAGGIULLI v. THE UNITED KINGDOM

MAGGIULLI v. THE UNITED KINGDOM

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