PARTLY DISSENTING OPINION OF JUDGES BINDSCHEDLER-ROBERT, RUSSO AND FOIGHEL

(Translation)

We agree that there was no violation of Article 1 of Protocol No. 1 (P1-1) as regards Pine Valley and that there was no breach of Article 13 (art. 13). We also share the majority view that there was a violation of Article 14 taken together with the second paragraph of Article 1 of Protocol No. 1 (art. 14+P1-1), but we are unable to follow the majority when it considers that there was no violation of the second paragraph of Article 1, taken alone (P1-1), in respect of Healy Holdings and Mr Healy.

Although, as the judgment states, "the interference was designed and served to ensure that the relevant planning legislation was correctly applied by the Minister for Local Government not simply in the applicants ’ case but across the board" and although in this sense it was "provided for by law" and had a legitimate aim, it is nevertheless the case that the applicants were the only ones to whom the measure - the annulment ab initio of the planning permission - was actually applied, and it may therefore be asked whether, in those circumstances, it was necessary "in the general interest" as is required under the second paragraph of Article 1 (P1-1).

Be that as it may, the annulment without compensation of the planning permission (of the "outline permission") granted to the previous owner is in our view evidence of a lack of proportionality between the interest of the State in the correct application of the law and the loss inflicted on the applicants. If the applicants were not in a position to benefit from the 1982 Act, there was no reason why they should not have been compensated for the drop in value, as was moreover provided for in the 1963 Act in the event of the revocation of permission on account of a change in circumstances. Such compensation was all the more called for because at the time of the transaction the authority of the Minister to take, on appeal, a decision contrary to the development plan was not disputed; the Government ’ s argument that the Minister was acting in good faith can only add further weight to this point. The applicants were therefore entitled, in good faith for their part too, to rely on the validity of the permission which had moreover been entered into the appropriate register. The State would therefore appear to be objectively responsible for the mistake committed by its organs and the applicants ought not to have had to bear the resulting loss.

It may be noted further that the purchase of the land by the applicants was not a risk transaction, as the majority considers, or a speculation; in any event, if there was an "element of risk", it was related not to the legal basis of the transaction but to the commercial aspects of the exploitation of the work undertaken. The outline permission, which generated a right to subsequent approval of the detailed plans provided that such plans took account of the parameters laid down, could be revoked only in the event of a change of circumstances, in which case the person concerned was entitled to compensation. In any event we do not see why the protection of the Convention should be reduced for persons taking financial risks, so long as their transactions are lawful.

For the foregoing reasons, we are therefore of the opinion that Healy Holdings and Mr Healy were victims also of a violation of the second paragraph of Article 1 of Protocol No. 1 (P1-1), taken alone.

[*]  The case is numbered 43/1990/234/300.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11) which came into force on 1 January 1990 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 222 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.