Lexploria

AS TO THE ADMISSIBILITY

Application No. 12360/86

by Michael Sydney RYDER

against the United Kingdom

The European Commission of Human Rights sitting in private on

7 October 1987, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

M.A. TRIANTAFYLLIDES

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. J. RAYMOND, Deputy 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 22 August 1986

by Michael Sydney RYDER against the United Kingdom and registered

on 27 August 1986 under file No. 12360/86;

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 1934 and resident

in Hertfordshire. The facts as presented by the applicant may be

summarised as follows.

The applicant has owned the freehold of land and premises in

Kings Langley since 1965. Before that date, commencing in late 1963

or early 1964, he leased the property from the former owner. The

applicant used this land for a builders' yard and for mechanics'

workshops. The local council was aware of this and raised no

objection.

However in April 1982, at the council's suggestion, the

applicant applied for an "established use certificate". Under the

planning legislation, anyone who has occupied and used property for

the same purpose since 1963 can obtain such a certificate and continue

the same use. The council, however, despite having assured the

applicant that obtaining such a certificate would be a mere formality,

refused the certificate. An enforcement notice ordering the applicant

to discontinue his unauthorised business activities was issued on 27

April 1985.

The applicant appealed to the Secretary of State for the

Environment. An inspector was appointed by the Secretary of State and

an inquiry held on 4-5 March 1986, at which oral evidence was heard.

However the inspector found in favour of the local council in a

decision dated 18 June 1986. He considered that the evidence failed to

show that the applicant had used the land in 1963 for the purposes of

his business and that the evidence instead indicated that he first

occupied the site in 1964. The applicant had also argued that the site

was secluded, that he had carried out his business there for 22 years

without previous objection, and that he provided facilities for other

small businesses, which had helped employment in the area. The

inspector held, however, that the facts of the situation did not

amount to the "very special circumstances" required to justify an

exception to the policy prohibiting industrial development in the

green belt.

The applicant was advised by his solicitors and counsel that

the inspector's decision was not "appealable" (1).

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(1) Section 246 of the Town and Country Planning Act 1971

provides for appeals to the High Court on a point of law

against decisions of the Secretary of State on enforcement

notices. The High Court may also interfere with a decision

if the Secretary of State, or his inspector, acted on

no evidence; or if he came to a conclusion to which, on the

evidence, he could not reasonably come; or if he has given a

wrong interpretation to the Statute's wording; or if he has

ignored relevant matters or taken into account irrelevant

matters; or if the rules of natural justice have not been

observed; or if a decision is unintelligible or inadequate.

Further appeals from a High Court decision lie to the Court of

Appeal and, thereafter, with leave, to the House of Lords.

COMPLAINTS

The applicant complains that the enforcement notice and the

inspector's decision to uphold the notice constitute an unjustified

interference with his right to the peaceful enjoyment of his property

contrary to Article 1 of Protocol No. 1. He also complains that he

received no compensation, although compliance with the enforcement

notice will result in the destruction of a business which he has built

up over 20 years.

The applicant contends that the decision to interfere with his

business and property rights was not made by an independent authority

as required by Article 6 para. 1 of the Convention. He argues that

the inspector who decided the appeal is an employee of the Department

of the Environment, which in fact issued the "green belt" policy. The

applicant also invokes Article 13 of the Convention and complains that

he has no remedy for his above complaints.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 August 1986 and

registered on 27 August 1986.

After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 4 December 1986, when it decided to adjourn the case

pending the outcome of Application No. 11723/85, Chater v. the United

Kingdom. The Commission declared the latter application inadmissible

on 7 May 1987.

THE LAW

1. The applicant complains that his local authority's enforcement

notice, requiring him to cease using his property for business

purposes, and the inspector's decision refusing his appeal against the

notice, constitute an unjustified interference with his right to the

peaceful enjoyment of his property, contrary to Article 1 of Protocol

No. 1 (P1-1). He also complains of a lack of compensation.

Article 1 of Protocol No. 1 (P1-1) provides as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles

of international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other

contributions or penalties."

The Commission finds that the interference with property

rights disclosed by this application falls within the ambit of the

second paragraph of Article 1 of Protocol No. 1 (P1-1) as a control of the

use of property. The Commission must therefore consider whether, on

the facts of this particular case, these measures were proportionate

and necessary, in accordance with the general interest.

The Commission notes that the purpose of the measures was to

protect the rural character of a protected green belt area. The

Commission recognises that planning controls are widely considered as

necessary and desirable in member States of the Council of Europe in

order to protect and preserve the environment. The Commission

accordingly finds that the measures applied in furtherance of the

green belt policy were prima facie in accordance with the general

interest.

Concerning the proportionality of the measures taken against

the applicant, which require him to cease use of his premises for his

business, the Commission recalls that the applicant had at no previous

time applied for planning permission for his business and it notes

that at all times such use had been unlawful under the relevant

legislation.

The Commission is also satisfied that the domestic law

permitted the competent planning authorities to take into account, as

a material consideration, the personal circumstances for the owner as

a result of a possible adverse planning decision. The Commission

finally observes that, in principle, the protection of property rights

ensured by Article 1 of Protocol No. 1 (P1-1) cannot extend to the granting

of compensation for the cessation of an unlawful use of property

(No. 11723/85, Dec. 7.5.87, to be published in D.R.).

In the light of the above considerations, the Commission finds

that a proper balance has been struck between the applicant's personal

interests and the general interest. The control of the applicant's

property is therefore in accordance with the requirements 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 the planning decisions in

his case were not made by an independent tribunal, as required by

Article 6 para. 1 (Art. 6-1) of the Convention. He submits that the inspector

who decided the appeal against the enforcement notice is an employee

of the Department of the Environment, which issued the green belt

policy, which in turn restricts the use of his property.

The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

provides as follows:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law..."

Insofar as the applicant disputes with the planning

authorities the extent of the lawful use of his property, the

Commission considers that such disputes may be said to involve the

applicant's civil rights and obligations. The question thus arises

whether the applicant has had a possibility to have these disputes

determined by an independent tribunal, as envisaged by Article 6 para.

1 (Art. 6-1) of the Convention.

It is clear that the local authority, the inspector and the

Secretary of State for the Environment cannot be considered to be

independent tribunals satisfying the requirements of Article 6 para. 1

(Art. 6-1) of the Convention. However an appeal against a decision of the

Secretary of State, or his inspector, lies to the High Court under

Section 246 of the Town and Country Planning Act 1971 and may also be

the subject of judicial review (see footnote to p. 2 above). The

applicant was advised by counsel that the inspector's decision was not

"appealable". If this advice is to be construed as meaning that the

applicant had no prospects of a successful appeal, the Commision notes

that the object of Article 6 (Art. 6) is necessarily limited to the provision

of procedural guarantees and that it cannot be required to ensure

decisions to the systematic personal advantage of all litigants.

However, if counsel's advice to the applicant is construed as meaning

that the scope of the remedy was inadequate, the Commission would

refer to its case-law that the scope of judicial review of

administrative decisions may be of a limited nature and nevertheless

satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the Convention. In

the case of Kaplan v. the United Kingdom (No. 7598/76, Dec. 17.7.80,

D.R. 21 p. 5 paras. 157-162) the Commission made the following

observations: -

"157. Where an individual's private rights have been

adversely affected by action taken by a public authority,

Article 6 (1) (Art. 6-1) plainly entitles him, in the Commission's

opinion, to obtain access to such court remedies as

exist within the domestic system for the purpose of

asserting the rights affected....

158. However there is no question of the present applicant

having been denied access to the existing court remedies

in which he could seek judicial review of the Secretary of

State's decisions. His complaint is that these remedies

were inadequate in scope because the courts could not go

fully into the merits of the Secretary of State's decision

and substitute their decision for his if they disagreed

with him. The question arises therefore whether he had a

right to a court with jurisdiction to determine the

full merits of the matter.

159. The Commission has already noted that in the Contracting

States discretionary powers are frequently conferred on

public authorities to take actions affecting private rights.

It is also a common feature of their administrative law, and

indeed almost a corollary of the grant of discretionary

powers, that the scope of judicial review of the relevant

decisions is limited.

...

161. An interpretation of Article 6(1) (Art. 6-1) under which it was

held to provide a right to a full appeal on the merits of

every administrative decision affecting private rights would

therefore lead to a result which was inconsistent with the

existing, and long-standing, legal position in most of the

Contracting States."

In the light of the above considerations the Commision finds

that the applicant had the opportunity to challenge the planning

decision of the inspector before the High Court pursuant to Section

246 of the Town and Country Planning Act 1971. Accordingly he had the

possibility of access to an independent tribunal for a determination

of his civil rights and obligations, within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention. It follows that this aspect of the

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

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

3. The applicant finally complains of the absence of an effective

remedy in respect of his complaints. He invokes Article 13 (Art. 13) of the

Convention, which provides as follows:

"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."

However, Article 13 (Art. 13), as a more general guarantee, is not

applicable in cases where the more specific guarantees of Article 6 (Art. 6)

apply, Article 6 (Art. 6) being the lex specialis in relation to Article 13

(Art. 13). The Commission, therefore, having found above that Article 6

(Art. 6) applies, finds no separate issue arises under Article 13

(Art. 13) of the Convention in the present case.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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RYDER v. THE UNITED KINGDOM

RYDER v. THE UNITED KINGDOM