PARTLY DISSENTING OPINION OF JUDGE WALSH

I regret that I do not find myself fully in agreement with the reasoning or the conclusions of the majority of my colleagues in the judgment of the Court.

1. Article 1 of the First Protocol (P1-1) does not constitute a guarantee against all State activities which may affect the market value of property. Article 1 (P1-1) acknowledges the right to own private property and the right not to be deprived of it. It is clear from the provisions of Article 1 (P1-1) that it does not guarantee the right of private property to be an absolute one.

The provisions envisage (a) a deprivation in the public interest ("pour cause d ’ utilité publique") and (b) control of the use of property where such control is in "accordance with the general interest" ("conformément à l ’ intérêt général"). Thus it is clear that the Article (P1-1) does not accept the rights of private property as absolute. On the contrary it contemplates the private interest yielding to the public good to the extent that may prove to be necessary.

2. In the present case the applicants complain of the expropriation permits and also of the restriction on user.

So far as the expropriation permits are concerned the complaint relates to the adverse effect on market values of the intimations of future development. It is not challenged that the contemplated future development is in the public interest. But the purpose is not to deprive the applicants of any of their property rights. If a legitimate objective, namely the planning of the city of Stockholm , necessarily affects the values of some of the properties in that city which are affected by the planning that is but a natural incident of owning property in an area subject to planning. But it is very far removed from anything in the nature of confiscation. If and when the property is acquired compensation will be paid for what is being acquired. Justice does not require that compensation must be paid for profits which might have been gained if there was no development of the area. The "public interest" in the correct sense necessarily implies a just public interest. If the public interest in question is a just and legitimate interest then the necessary diminution of the private interest required to sustain that public interest cannot in itself be unjust.

3. It appears to me that the issue of the expropriation permits has been given a disproportionate importance. The reality of the situation is that once it is apparent that the future planning of the city of Stockholm will take a certain shape the sale value of any property likely to be affected by planning intentions or proposals will be influenced thereby. Therefore the issue of the permit cannot be treated as an act of expropriation or as an act equivalent to expropriation. At the most it is an intimation of possible or even probable future events. It is the possibilities, or probabilities, of such events which influence the market - not the intimation of them. The Government permit in itself does not create any plan. In many countries local authorities often publish their development plans many years in advance of any step being taken to acquire any property even though it may be quite clear from the development plans that some property or properties will have to be acquired in whole or in part to carry out the proposed plan.

4. In the present case the complaint is based in effect upon the alleged loss of possible prospective profit available in a situation freed from the incidents of normal and legitimate town planning. Until expropriation actually takes place the applicants are free to deal with their property though admittedly in a market inhibited by the prospect of the probable future expropriation. However, this is normal in most areas of prospective planning. There is no evidence to indicate that the ultimate value of the compensation will be any smaller or less valuable relatively than the compensation which would have been payable if the expropriation had taken place soon after the issue of the permit by the Government. Any fall in value attributable to the existence of a city development plan should be the same in either event. It is an element not ordinarily affected by the effluxion of time. Unless the applicants are entitled to compensation for the very existence of a development plan they cannot claim to be victims of a breach of the first paragraph of Article 1 of the Protocol (P1-1). In my view the Article (P1-1) guarantees no such right.

5. While the restriction on user is undoubtedly linked to the proposed development it is a separate matter. It is commonplace for planning authorities to restrict the user of particular properties in the light of the requirements of a development plan. There is no guaranteed right to use property in any way the owner chooses. User may be restricted legitimately in the interests of the general good. The restrictions in the present cases are limited to the exigencies of the planning and there has been no evidence of any arbitrary restrictions. There has been no challenge to the legitimacy of the proposed development plan.

While Article 1 of the Protocol (P1-1) does not necessarily contemplate some compensation in every case of expropriation or of restriction of property rights for the "public" or "general interest" there has been no suggestion in the present cases that just compensation will not be payable in the event of expropriation.

6. In my view both paragraphs of Article 1 of the First Protocol (P1-1) are applicable to the present cases but in my opinion no breach of them has been established.

7. In my opinion there has been no breach of Article 17 and 18 (art. 17, art. 18) of the Convention.

8. I am also of opinion that there was no violation of Article 14 (art. 14). The discrimination envisaged by Article 14 (art. 14) is not confined to the examples specified in the text of the Article (art. 14) and all forms of discrimination ejusdem generis are also prohibited.

The applicants have alleged that they were discriminated against in the sense that they fared worse than persons whose property was not affected by the proposed development. The choice of the applicants ’ properties was due to the requirements of the development plan and was not in any way referable to the identity of or to any characteristics of the applicants as envisaged by Article 14 (art. 14).

9. I agree with the judgment of the Court concerning Article 6 § 1 (art. 6-1) of the Convention as set out in paragraphs 78 to 87 inclusive of the Court ’ s judgment.

10. For the reasons given by the Court I also agree that it is not necessary to examine the case under Article 13 (art. 13).

11. I also agree with the Court ’ s decision concerning Article 50 (art. 50) as set out in paragraph 89 of the judgment.

[*]  Note by the Registry: Page-numbering of the stencilled version.

[*]  Note by the Registry: Statens offentliga utredningar.