THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40425/98

by James MOORE

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 15 June 1999 as a Chamber composed of

Mr J-P. Costa, President ,

Sir Nicolas Bratza ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 September 1997 by James MOORE against the United Kingdom and registered on 24 March 1998 under file no. 40425/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in 1950 and living in Bristol . He is represented before the Court by Mr B.C. Cox, a lawyer practising in Bristol . The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Particular circumstances of the case

In 1978 the applicant purchased Highcroft , a house and garden in Mangotsfield , Bristol , for GBP 23,000. At that time the property was in open countryside and according to the structure plan prepared pursuant to the Town and Country Planning Act 1971 (“the 1971 Act”), no significant development was planned for the area. The value of properties in the United Kingdom increased substantially, and by 1985 Highcroft was worth approximately GBP 150,000. On 16 April 1985, and again on 13 December 1989, the applicant was granted mortgage advances secured against his property.

In 1983, pursuant to the 1971 Act, Avon County Council proposed amendments to the structure plan, to permit a large development (the Emerson Green Development Plan, henceforth “the Plan”) consisting of three thousand, one hundred homes, a business park and an international science park. A consortium, the Emerson Green Development Company Limited, consisting of a number of national and international companies, was formed to develop the Plan. In July 1985 the Secretary of State modified and approved the structure plan. In 1985 representatives of Avon County Council and the Consortium met with small land-owners and assured them that their properties would be purchased at full value. The applicant’s property is situated within the area of the proposed science park and in 1987 planning permission was granted to convert it into a hotel.

In 1986 the applicant’s marriage failed. He appointed a firm of chartered surveyors to act on his behalf in negotiations for the sale of his property. On 20 November 1989 they reported an offer of GBP 150,000, which they recommended should be refused since it was some GBP 30,000 short of the market value at that time.

By January 1992 the Consortium had acquired 75% of the land covered by the Plan, which was disclosed on all searches made by potential purchasers, thus putting small home-owners such as the applicant in a weak bargaining position. In the early 1990s the applicant became unemployed and had difficulties in making his mortgage repayments. His attempts to sell Highcroft continued to be unsuccessful and by 21 September 1995, the chartered surveyors advised that the property was virtually unsaleable . In May 1996, the applicant owed the bank in excess of GBP 174,000. The property was repossessed and has remained vacant ever since. The bank report that in February 1998 they received an offer of GBP 135,000. The applicant has been advised that, but for the Plan, Highcroft’s market value would be around GBP 220,000.

In September 1997 Professor Anthony Bradley advised the applicant that he has no right under the Town and Country Planning Act 1990, Part VI, to require the local authority to purchase his property since the developers of the proposed science park are private rather than public authorities, and since Highcroft has been capable of use as a family home (“reasonably beneficial use”) throughout the relevant period (see below).

B. Relevant domestic law and practice

Where a proposed development is to be undertaken by a public authority, the “planning blight” that ensues may in some circumstances give rise to compensation. Thus the Town and Country Planning Act 1990 (“the 1990 Act”), Part VI, Chapter I, gives an owner a right to require the planning authority to buy his property where, as a result of a planning decision, the land has become “incapable of reasonably beneficial use” (sections 137-138).

The 1990 Act further provides in Part VI, Chapter II, that owners have a right to require the planning authority to purchase land affected by “planning blight”, namely land “which may be required for the purposes of the functions of a government department, local authority or statutory undertakers, or of the British Coal Corporation” or land in an “action area” selected by the local authority for comprehensive treatment (Schedule 13, paragraph 1(a) and (b)).

The Parliamentary Ombudsman in his report on the problems of blight caused by the Channel Tunnel Rail Link (HC 193, 1994-95) pointed out that the statutory definition of planning blight is much narrower than the actual problem of blight caused by uncertainty over an area’s future.

COMPLAINTS

The applicant complains that, solely as a consequence of the amendment of the structure plan and the approval of the Plan, he has been prevented from selling his property and moving elsewhere at the time of his choice, contrary to Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4. In addition he complains that he has been prevented from claiming compensation for his loss, in breach of Article 8, and that he has been deprived of any legal remedy, in breach of Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains that the amendment of the structure plan has prevented him from selling his property and moving elsewhere, contrary to Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4.

The Court notes at the outset that the United Kingdom is not a signatory to the Fourth Protocol. It therefore lacks jurisdiction to consider the applicant’s complaint under Article 2 of that Protocol.

Article 8 of the Convention provides:

“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.”

Article 1 of Protocol No. 1 states:

“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.”

The applicant submits that the development scheme was devised and implemented by the Avon County Council in consultation with a number of local authorities. The County Council knew that the approval of the scheme would seriously restrict the range of purchasers willing to buy from small land-owners such as the applicant, and thus reduce small land-owners’ powers of negotiation. In recognition of this, representatives of the County Council met with small land-owners in about 1985 and promised to safe-guard their interests. This has not occurred, and the large developers have purchased or offered to purchase land at below any reasonable market price, or refused to purchase at all.

Turning first to the complaint under Article 8, the Court observes that the applicant does not allege that he has been prevented from using his property as a family home, although he does claim that the grant of planning permission for the science park has affected his ability to sell the house for a fair price. In these circumstances, it cannot be said that there has been any interference with the applicant’s right to respect for his home and family life under Article 8, and the Court finds it more appropriate to examine the complaint in terms of an alleged interference with property rights, under Article 1 of Protocol No. 1.

With regard to the complaint under Article 1 of the First Protocol, the Court notes that in 1983 the local County Council proposed amendments to the structure plan, to permit a large private development, including a science park covering the area in which the applicant’s property is situated. In July 1985 the structure plan was modified and approved by the Secretary of State. In 1987 planning permission was granted to convert the applicant’s house into a hotel. In 1989 the applicant was offered GBP 150,000 for the purchase of his house, which he refused since he was advised that this offer fell approximately GBP 30,000 short of the market value at that time. In 1995 the applicant was advised that, as a result of the proposed development, his house was virtually unsaleable . In 1996 it was repossessed by the bank pursuant to the applicant’s mortgage agreement. In 1998 the bank received an offer of GBP 135,000. The applicant has been advised that, but for the proposed development, his house’s market value would be around GBP 220,000.

The Court recalls that Article 1 of Protocol No. 1, which guarantees the right to the peaceful enjoyment of possessions, does not guarantee the right to continue to enjoy those possessions in a pleasant, unchanged rural environment (see, for example, the Commission’s decision of 17 May 1990 on the admissibility of application no. 13728, S. v. France, D.R. 65, p. 250 at p. 261). However, insofar as the local authority’s proposed amendments to the structure plan, which were approved by the Secretary of State, have affected the applicant’s ability to dispose of his property, the Court is prepared to assume that this may constitute an interference with his right to the peaceful enjoyment of his possessions (see, mutatis mutandis , the Sporrong and L önnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 23, § 60 and pp. 24-25, §§ 63-65).

The Court observes that the applicant has not disputed that the approval of the proposed development pursued a legitimate aim in the public interest. In addition, however, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98-B, p. 34, § 50). This requirement was expressed in the above-mentioned Sporrong and L önnroth judgment by the notion of the “fair balance” that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (op. cit., p. 26, § 69). The requisite balance will not be found if the person concerned has had to bear “an individual and excessive burden” (ibid., p. 28, § 73).

The Court recalls that in the Sporrong and L önnroth case, on which the applicant relies, the effect of the expropriation permits and prohibitions on construction was to render virtually non-existent those applicants’ powers to dispose of their properties. In contrast in the present case, in April 1985, after the local authority had proposed changes to the structure plan in 1983, and again in December 1989, after the amended structure plan had been approved by the Secretary of State in July 1985, the applicant was able to secure substantial mortgage loans on his property. Moreover, despite the fact that the surveyors acting for him have advised that it is “virtually unsaleable ”, two offers of purchase have been made. The first of these offers was rejected by the applicant because he was advised that it fell some GBP 30,000 short of market value. However, the Court recalls that even where property is expropriated by the State, Article 1 of the First Protocol does not always guarantee a right to full compensation (see the above-mentioned James and Other judgment, p. 36, § 54). Furthermore, it must be borne in mind that there is always an element of risk and speculation involved in selling property on the open market and there can be no certainty that, even had the structure plan not been modified, the applicant would have received an offer at what he considered to be an appropriate price (cf. the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 26, § 59). In these circumstances, it cannot be said that the impugned changes to the structure plan have disproportionately restricted the applicant’s powers to dispose of his property or that any interference with his property rights failed to strike a “fair balance”.

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

2. In addition, the applicant complains that he has been deprived of any legal remedy or hearing to determine his civil rights, contrary to Article 6 § 1 of the Convention, which states:

“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. ...”

The Court must first determine whether Article 6 § 1 is applicable to the matters complained of by the applicant. The applicant’s right of property is without doubt a “civil right” (see the above-mentioned Sporrong and L önnroth judgment, p. 29, § 79). However, Article 6 § 1 extends only to “ contestations ” (disputes) over (civil) “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States (see, amongst many examples, the above-mentioned James and Others judgment, p. 46, § 81). Since, as the applicant’s own legal expert, Professor Anthony Bradley, has advised, English law provides no right to the applicant to require the local authority or the private developers to purchase his property at a price which he considers to be fair, it follows that Article 6 § 1 is not applicable insofar as the applicant complains of the lack of any such substantive right. The applicant does not claim to have been denied access to court in respect of any right or remedy which may be available to him under domestic law.

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

3. Finally, the Court recalls that under Article 35 of the Convention, it “may only deal with a matter ... within a period of six months from the date on which the final decision was taken”. It notes that the applicant’s house was repossessed in May 1996, more than six months before the introduction of the application on 12 September 1997. However, in the light of the conclusions set out in the preceding two paragraphs, the Court is not required to decide whether or not the application complies with other admissibility criteria under Article 35.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J-P. Costa

Registrar President