THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11838/06 by Petrus Josephus Christiaan Maria and Chretien Henri Joseph Maria FRIJNS against the Netherlands

The European Court of Human Rights (Third Section), sitting on 13 November 2008 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura-Sandström , Corneliu Bîrsan , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Ann Power , judges, and Stanley Naismith , Deputy Section Registrar ,

Having regard to the above application lodged on 24 March 2006,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Petrus Josephus Christiaan Maria Frijns and Mr Chretien Henri Joseph Maria Frijns are brothers and live in Bemelen. They are Dutch nationa ls, retired farmers and were born in 1940 and 1942 respectively. They were rep resented before the Court by Mr S.A.R. Lely, a lawyer practising in Maastricht .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

Since 1875 the applicants ’ family has owned a farmhouse with pertaining agricultural land, including a plot of 1.33 hectares situated along the Sint Antoniusbank road (hereinafter “the plot”) and used as a meadow for dairy cattle. After the death of their father in 1983, the applicants inherited and continued jointly to exploit the farm. For reasons of health and age, the applicants ceased their farming activities on 1 April 2000.

U nder the 1952 O utline Extension Plan ( Uitbreidingsplan aanwijzende de bestemming in hoofdzaken ) of the then Cadier and Keer municipality (subsequently incorporated into the Margraten municipality) , th e plot was designated for the construction of hotels and country houses.

Each year from 1973 until 1993 the m unicipal c ouncil ( gemeenteraad ) adopted a preliminary planning decision in preparation for a (new) zoning plan ( voorbereidingsbesluit bestemmingsplan ) for an area comprising the plot. In accordance with section 22 of the Town and Country Planning Act ( Wet op de Ruimtelijke Ordening ) , these preliminary planning decisions were laid open for public inspection, notice being given through the Netherlands Government Gazette ( Staatscourant ) and the local press. Each of these preliminary planning decisions prohibited any construction activities without a prior permit issued by the municipal executive ( burgemeester en wethouders ) and adjourned the issuance of a building permit by the municipal executive pending the validity of the preliminary planning decision.

In the meantime, on 20 January 1977, the Limburg Provincial Executive ( gedeputeerde staten ) had adopted a local area development plan ( streekplan ) for the area of south Limburg . The area in which the plot is situated was classified as a “ rural area with a highly valued landscape and/or cultural historical background” . In a subsequent local area development plan, adopted by the Limburg Provincial Executive on 19 February 1987, the plot was classified as a “rural area with the interwoven categories agriculture 1, nature 2, landscape 1, and recreation and tourism 2”. Both plans were duly laid open for public inspection.

On 29 March 1994, the Margraten municipal council adopted the new zoning plan “Witte Vlekken”, which was preservation-oriented. The plot was designated for “residential purposes to be further defined in accordance with section 11 of the Town and Country Planning Act”. By decision of 25 October 1994 the Limburg Provincial Executive withheld their approval of this part of the zoning plan, finding that new residential buildings on the plot would affect the landscape in an irreparable manner. The municipal authorities as well as other appellants, including the applicants, unsuccessfully challenged this decision in administrative appeal proceedings in which the final decision was handed down by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State on 21 July 1997.

On 25 November 1997 the Margraten municipal council adopted a revised version of the “Witte Vlekken” zoning plan in which the plot was designated as an “agricultural area with natural and landscape values”. On 23 June 1998 the Limburg Provincial Executive approved the revised zoning plan. The applicants ’ appeal against this approval was dismissed by the Administrative Jurisdiction Division on 7 July 2000. No further appeal lay against this decision.

On 27 October 2000 the applicants filed a claim under section 49 of the Town and Country Planning Act with the Margraten municipal authorities for compensation for damage in consequence of the revised zoning plan, affecting land owned by them, the burden of which they could not reasonably be expected to bear alone. The applicants estimated this damage at 3,097,000 Netherlands guilders [1] .

This claim and the applicants ’ subsequent objection were rejected by the Margraten municipal council on 25 February 2003 and 4 November 2003 respectively. The applicants ’ appeal against this last decision was dismissed by the Maastricht Regional Court ( rechtbank ) on 19 October 2004.

A further appeal lodged by the applicants was rejected on 28 September 2005 by the Administrative Jurisdiction Division, which found it established that the applicants had not availed themselves of the possibility to build on the plot as rendered feasible under the 1952 zoning plan. It accepted that the applicants had incurred damage as a consequence of the new zoning plan, but it had to be determined whether this damage was to be borne, either partly or in full, by the applicants, by determining whether they could be regarded as having accepted the risk that the possibility to build on the plot would disappear. It accordingly had to be examined whether there had been any indication of such a disadvantageous change in the plot ’ s designation and whether – considered from the position of a rationally thinking and acting owner – the applicants should have given serious consideration to that prospect. After having noted the developments since 1973 as regards the classification and destination of the plot, the Division agreed with the municipal authorities and the Regional Court that the applicants, or their legal predecessors, should be regarded as having accepted the risk that the possibility to build on the plot would disappear and, consequently, that the damage did not justify compensation under section 49 of the Town and Country Planning Act.

In so far as the applicants relied on Article 1 of Protocol No. 1, the Division held:

“... the new zoning regulation does not deprive the appellants of their property; they retain the right to dispose of it freely albeit within the defined planning framework. In so far as the limitations contained in the zoning plan as to the use of the plot are to be seen as an interference with the right to undisturbed enjoyment of property, Article 1 of Protocol No. 1 leaves unimpeded the application of laws that can be regarded as necessary to control the use of property in accordance with the general interest. ... the zoning plan in force in the area concerned constitutes such a control. It further does not follow from Article 1 of Protocol No. 1 that the control of the use of property as a result of limitations laid down in the zoning plan should be compensated for if Article 49 of the Town and Country Planning Act offers no basis for this. In the instant case there has therefore been no violation of Article 1 of Protocol No.1.”

No further appeal lay against this decision.

COMPLAINT

The applicants complained under Article 1 of Protocol No. 1 that no fair balance had been struck between their personal interests and the general interests involved, in that they had suffered excessive damage as a result of the new zoning plan without being granted compensation. Relying on Article 6 and Article 13 of the Convention , the applicants further complained that the Administrative Jurisdiction Division had unjustly held that, if section 49 of the Town and Country Planning Act offered no basis for financial compensation, the same applied to Article 1 of Protocol No. 1.

THE LAW

The applicants complained that the decision to change the destination of the plot and the refusal to compensate them for the resulting damage was contrary to their property rights as guaranteed by Article 1 of Protocol No. 1. This provision reads:

“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.”

To the extent that the applicants seek to complain of the change in destination of the plot, the Court notes that the final decision on this matter, within the meaning of Article 35 § 1 of the Convention, was given by the Administrative Jurisdiction Division on 7 July 2000, which is more than six months before the date on which the application was submitted to the Court. Accordingly , this part of the application must be rejected as having been filed out of time.

As regards the question whether the decision to reject the applicants ’ claim for compensation for damage under section 49 of the Town and Country Planning Act was compatible with Article 1 of Protocol No. 1, the Court notes at the outset that t here had been n o formal expropriation of the p lot in question and finds that it cannot be said that there was a de facto depr ivation of property. The case concerns the permissible use of the plot which is a form of control of use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1.

The Court reiterates that , in an area as complex and difficult as that of spatial development, the Contracting States should enjoy a wide margin of appreciation in order to implement their town- and country-planning policy. Nevertheless, the Court must determine whether the requisite balance was maintained in a manner consonant with the applicants ’ right of property (see Housing Association of War Disabled and Victims of War of Attica and Others v. Greece , no. 35859/02, § 37 , 13 July 2006 ).

The Court observes that the applicants, like their legal predecessors, have always used the plot for agricultural purposes. The Court appreciates that both the 1952 Outline Extension Plan – which allowed for the construction of hotels and country houses on this agricultural plot – and the 1997 revised zoning plan – which changed the planning destination of the plot from constructible land to a protected landscape with an agricultural destination must have affected the market value of the plot.

Against this background, the Court considers that, by deciding not to construct any buildings on the plot or to sell the plot for that purpose whilst this was possible under the 1952 zoning plan until 1997 when the possibility to build on the plot became finally defunct whereas it was clear as from 1973 that the local authorities were planning a revision of this zoning plan including the plot ’ s destination, the applicants and their legal predecessors were actually making entrepreneurial choices which, by their very nature, involve an element of risk. This being so, the Court does not consider that the ultimate change in destination of the plot in the revised zo ning plan without granting the applicants compensation can be regarded as a disproportionate measure contrary to Article 1 of Protocol No. 1 (see Pine Valley Developments Ltd and Others v. Ireland , 29 November 1991, § § 59-60, Series A no. 222 ).

It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicants further alleged a violation of their rights under Article 6 of the Convention, which provision guarantees the right to a fair trial, arguing that the Administrative Jurisdiction Division had erred in its interpretation of Article 1 of Protocol No. 1.

In so far as the applicants rely on Article 6 of the Convention, the Court reiterates – on the assumption that the proceedings at issue fall within the scope of Article 6 – that it is not a court of appeal from domestic courts and cannot examine complaints alleging that domestic courts have reached a wrong decision. Noting that the applicants were given ample opportunity to state their case and to submit whatever they found relevant for the outcome, the Court has found no indication that the proceedings at issue fell short of the requirements of Article 6 as to fairness of proceedings (see, for instance, Frátrik v. Slovakia (dec.), no. 51224/99, 4 June 2002, and Dulskiy v. Ukraine , no. 61679/00, § 93 , 1 June 2006 ) .

It follows that this part of the application must also be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicants lastly alleged a violation of Article 13 of the Convention, which guarantees the right to an effective remedy. The applicants argued that they did not have an effective remedy in respect of the violation of their property rights under Article 1 of Protocol No. 1.

The Court reiterates that Article 13 of the Convention applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, Boyle and Rice v. the United Kingdom , 27 April 1988, § 52 , Series A no. 131 , and Marini v. Albania , no. 3738/02, § 150 , ECHR 2007 ‑ ... (extracts) ). The Court has found above that the applicants ’ complaints under Article 1 of Protocol No. 1 and Article 6 of the Convention are inadmissible as being manifestly ill-founded. Consequently, the applicants cannot be regarded as having an “arguable claim” for the purposes of Article 13 of the Convention.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Josep Casadevall Deputy Registrar President

[1] Corresponding to 1,405,357.30 euros