Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H.C. KRÜGER, 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 13 July 1985 by

S.B. and 45 Others against the United Kingdom and registered on 20

January 1986 under file No. 11958/86;

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 application is introduced by 46 residents of Enfield, Middlesex,

all members of the North/South Road Campaign Committee who are

represented before the Commission by one of their number,

Mr. S.B., a British national, resident in Enfield and

Chairman of the North/South Road Campaign Committee.

The applicants have been campaigning since 1977 against the proposed

construction by the Greater London Council (GLC) of the North/South

Road, some 12 km in length, which will run from Bullsmoor Lane,

Enfield in the north to Tottenham Hale in the south; the purpose of

the road is to relieve the Herford Road (A. 1010) and residential

roads in the area of extraneous traffic and to provide proper access

into and distribution between the industrial areas of Lea Valley.

The applicants object mainly to the northern alignment of the road

which is planned to pass through a residental area where the

applicants live and across the open land of Rammey Marsh, which local

people use for recreation purposes; the applicants propose an

alternative route which, according to them, will leave residential

areas unaffected.

The applicants' objections were first examined at a public inquiry

held in March 1982 in connection with the Enfield London Borough

Council's District Plan for that Borough, wherein provision was made

for Policy 34, i.e. "to press the GLC to expedite the planning, design

and construction of the North/South Road". In his report the

Inspector recognised that the issues raised by the objectors required

further consideration and that, taking these into account, he

recommended that Policy 34 be deleted from the plan, without

prejudice, however, to the Council's support for the road in

principle. The Council, however, decided to pursue the existing

policy.

In July 1983 the GLC submitted applications to develop land in the

London Boroughs of Enfield and Harringay for and in connection with

the construction of the North/South Road, which were called in by the

Secretary of State for the Environment under S. 35(1) of the Town and

Country Planning Act 1971 ("the 1971 Act").

One hundred and seventy-six objections and representations to the

planning application were registered and a Public Inquiry was called

and held from 20 March to 26 April 1984. The applicants participated

in the Public Inquiry, put forward their alternative solution and

challenged the GLC's traffic figures as out of date and taken prior to

the opening of the London orbital motorway, the M.75. They also

submitted that the effects of the North/South Road in north-eastern

Enfield were played down by the GLC at the inquiry.

The Inspector in his report noted the adverse effects of the

North/South Road on Bullsmoor Lane, Partners Lane and Enfield Lock

area, where the applicants' homes are situated, and considered that

"a number of properties will suffer a most serious loss of amenity,

both visually and because of the noise and the general disturbance

into what is at present a quiet residential area". He also noted the

measures proposed by the GLC in order to minimise the effects of the

road on adjoining properties (such as double glazing) and he

subsequently examined the applicants' alternative proposal which in

his view would have significant environmental benefits and which was

accepted by the GLC as technically possible. However, he criticised

it mainly on the ground that "it would change the character of the

road from that of a road providing access to the industrial areas with

a controlled amount of traffic using it, to an uncontrolled radial

route into London which could be used as an alternative to the A.10".

The Inspector recommended that planning permission be granted for the

application subject to appropriate conditions to ensure that the

detailed construction of the road and its landscaping being carried

out in the manner outlined at the inquiries to ensure that the impact

of the scheme on the surrounding areas is kept to a minimum.

The Secretary of State agreed with the Inspector's conclusions and

accepted his recommendations. The planning permissions were granted

on 28 February 1985.

No application was made under S. 245 of the 1970 Act which provides

that any person aggrieved by a decision of the Secretary of State who

desires to question the validity of this decision, on grounds that the

decision is not within the powers of the 1971 Act, or that any of the

relevant requirements have not been complied with in relation with the

decision, may, within six weeks from the date on which the decision is

taken, make an application to the High Court.

The construction of the road has started, and on 9 March 1986 it was

approaching Enfield Lock.

COMPLAINTS

The applicants complain that their right to respect for their home,

private and family life, as guaranteed by Article 8 (art. 8)

of the Convention, has been infringed by the construction of the

North/South Road.

The applicants submit that, although the North/South Road was intended

to provide for a proper access into, and a proper distribution between

the industrial areas of the Lea Valley, its entire northern alignment

is planned to pass through the purely residential areas of Partners

Lane, Bullsmoor Lane and Enfield Lock.

The applicants complain of the devastating effects, both visually and

because of the noise, pollution and general disturbance, that the

construction of the road will have on their homes and on the peace and

quiet of their family lives; some families will lose parts of their

gardens and others will be almost sealed in their houses as a result

of the double glazing. The environmental impact of the road will be

disastrous for the area and its character as a peaceful, quiet

residential area will be irreparably and definitively altered.

The applicants propose an alternative route which would satisfy the

needs for which the North/South Road in its present form is

constructed and still leave residential areas unaffected. They submit

that the technical feasibility of this alternative proposal has been

recognised by the GLC.

THE LAW

The applicants have complained that the construction of the

North/South Road violates their right to respect for home and private

and family life. They invoke Article 8 (art. 8) of the Convention.

It is true that Article 8 (art. 8) of the Convention secures to

everyone the right to respect for his private and family life and his

home. However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

The Commission recalls its previous decision (No. 9515/81, 7.5.82,

D.R. 28 p. 243) where it held that the applicant failed to exhaust

local remedies as required by Article 26 (art. 26) of the Convention

by not pursuing his appeal against the High Court judgment dismissing

his action to challenge under Schedule 2 para. 2 of the Highways Act

1959 the Minister's orders made under Sections 7 and 9 of the Highways

Act 1959 for the construction of a road.

The Commission noted that although the applicant was not able to plead

Article 8 (art. 8) of the Convention as such before the High Court, he

was able to submit that the road would constitute an irreparable

nuisance, which was a submission which went to the substance of his

complaint of an interference with his Convention rights. Thereupon

the Commission held that by abandoning his appeal the applicant failed

to exhaust a remedy which would, if successful, have been effective to

redress his complaints under United Kingdom law.

In the present case, the Minister's decisions granting applications

for planning permission were taken under S. 35(1) of the 1971 Act.

The Commission notes that no application was made under S. 245 of the

1971 Act to challenge the validity of the decisions. The Commission

also notes that that section is in exactly the same terms as the

remedy under Schedule 2 of the Highways Act 1959 (now 1980) which the

applicant in Application 9515/81 failed to pursue and accordingly in

the present case the applicants' failure to challenge under S. 245 of

the 1971 Act the Minister's decisions granting applications for

planning permission means that they have, therefore, not exhausted the

remedies available to them under United Kingdom law. Moreover, an

examination of the case does not disclose the existence of any special

circumstances which might have absolved the applicants, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at their disposal.

It follows that the applicants have not complied with the condition as

to the exhaustion of domestic remedies and their application must be

rejected under Article 27 para. 3 (art. 27-3) 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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B. ; and 45 OTHERS v. THE UNITED KINGDOM

B. ; and 45 OTHERS v. THE UNITED KINGDOM

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