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)