AS TO THE ADMISSIBILITY OF
Application No. 19178/91
by John BRYAN
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 October 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
G. JÖRUNDSSON
Mrs. G.H. THUNE
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 October 1991
by John Bryan against the United Kingdom and registered on 9 December
1991 under file No. 19178/91;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
4 November 1992 and 29 July 1993 and the observations submitted
by the applicant on 29 December 1992;
- the submissions of the parties at the hearing held on
14 October 1993;
Having deliberated;
Decides as follows:
THE FACTS
The particular circumstances of the case
The applicant is a British citizen born in 1931. He is
represented before the Commission by Mr. R. M. Napier, of Messrs.
Albinson Napier and Co., Warrington. The facts of the application, as
submitted by the parties, may be summarised as follows.
On 4 December 1989 an enforcement notice was issued and was
served on the applicant by the Vale Royal Borough Council ("the
Council") requiring the demolition of two brick buildings on land which
the applicant had bought in 1987. The enforcement notice recited that
there appeared to the Council to be a breach of planning control in
that the two brick buildings had been erected without the required
planning permission. The notice required the applicant to demolish the
buildings and remove the building materials within three months.
The applicant appealed to the Secretary of State for the
Environment under Section 174 (2) (a),(b),(g) and (h) of the Town and
Country Planning Act 1990 (TCPA), which consolidated and amended the
earlier legislation. On 1 October 1990 an inspector, appointed by the
Secretary of State to determine the appeal, dismissed the appeal. He
held, inter alia, as follows:
[The appeal on ground (b)]
"12. What I need to decide in respect of this ground of appeal
is whether, as a matter of fact and degree, the buildings could,
from their appearance and layout, be considered to have been
designed for the purposes of agriculture. I conclude, from
examination of photographs taken during construction and from
noting the alterations made since, that the Council were right
to be concerned that the appeal buildings had the appearance of
large detached houses. The size, layout, and original external
appearance of the buildings and their detailing did little to
change that view.
13. In my opinion, as originally constructed, the buildings
would have led any reasonable person to have concluded that he
or she was looking at the start of a small new detached housing
estate. Indeed, that appeared to be the widely held view of many
local people, supported by the local Member of Parliament, who
were concerned to see what was being built on the edge of the
village. The more recent constructing of an, as yet, uncompleted
but similar building close to the 2 appeal buildings serves to
compound the effect.
14. But is the original appearance of the 2 appeal buildings
and particularly the first assessment of the Ministry of
Agriculture Fisheries and Food which convinces me that the
buildings were not requisite or reasonably necessary for the
purposes of agriculture. Numerous features of the buildings were
more suited to houses than barns. The original openings in
building No. 1 were said to be doorways for a veal calf unit.
But this building did not incorporate internal drainage
considered necessary for such stock. The doorways appeared to
have been more likely to have been useful as window openings,
none reached ground level as built; one was almost waist high
above outside ground level measured from the lower edge of the
unbonded brickwork added later. Other features in both buildings
include the extensive use of Georgian style windows and other
windows made for domestic use. I understand that Mr Bryan's
contacts allowed him to buy these windows cheaply. But whatever
their source, they contribute to an impression that the buildings
look more like houses than barns. There are other features which
add to that view. The use of domestic style eaves and gable
barge boarding. The residential look of the "porch" to No 1
building. And the MAFF view about the uneconomic layout of both
buildings as originally built all add to the impression that
these buildings were not designed for agricultural purposes,
albeit they have since been modified and adapted for such a use.
15. You said that the buildings looked like many local old
barns. But it is my view that, as originally built, the appeal
buildings would have looked much more like houses. They did not
look as if they had been designed for the purposes of
agriculture. My opinion is not altered by my finding them now
being use for storing hay. The appeal on ground (b) fails.
The appeal on ground (a)
16. The appeal buildings lie in part of the green belt ...
They also lie within the High Whitley Conservation Area but
outside the village policy area or High Whitley shown on the
draft Vale Royal Borough Local Plan. In my opinion, the decision
turns on the following main issues. Whether, if the development
is inappropriate to the green belt, there are any special
circumstances to justify the granting of planning permission;
secondly, whether the appeal buildings enhance or preserve the
character or appearance of the Conservation Area. I shall also
consider the effect of the development on the countryside
surrounding the village.
...
17. The appeal buildings have neither enhanced nor preserved
the appearance of this part of the Conservation Area, rather the
reverse. Much of the pleasant nature of the Area is derived from
the grouping of the older housing around the centre and from its
rural and agricultural setting. The 2 appeal buildings look like
part of a small estate of detached houses with access roads and
suitable garden areas. The third building, not subject of this
appeal, exacerbates this impression.
19 These objections amount to sound and clear cut reasons why
planning permission should be withheld. The fact that other
buildings or buildings of a broadly similar nature, if considered
to be designed for agricultural purposes, could be built under
the provisions of the Town and Country Planning General
Development Order 1988, does not affect my decision. The appeal
on ground (a) fails.
The appeal on ground (g)
20. You said that demolition of the buildings and the removal
of the materials was an excessive requirement. I do not agree.
Harm to the purpose of the green belt has been caused. The
appearance and character of the Conservation Area has not been
either enhanced or preserved. Encroachment on the countryside
has occurred. Making the buildings look more like those which
might have been permitted development as you suggested could
mitigate a little of the harm I have identified. But this is not
just a matter of cosmetics. The main objections would remain.
In my opinion, the proper and necessary course of action is that
required by the notice. That includes removal of materials.
Such a requirement would not preclude their re-use on site for
any possible future permitted development. The appeal on ground
(g) fails.
The appeal on ground (h)
21. ... Mr. Bryan wanted more time in order to erect a
replacement or replacements before demolition. I see no need to
insist on a period which would make undue difficulty for him.
I will increase the period to 6 months. ...
22. I have taken account of all the other matters raised,
including the possibility of your client putting up a large steel
clad building under permitted development rights, but find they
do not affect my decision."
The applicant appealed against the inspector's / Secretary of
State's decision under Section 289 TCPA. The appeal was dismissed by
the High Court on 8 March 1991, the judge, Mr Lionel Read, Q.C.,
finding inter alia as follows:
"In my judgment ... it cannot be said that the inspector
failed to take into account the fact that the applicant
might, within his General Development Order rights, erect
buildings of a broadly similar nature. He addressed that
very consideration in terms at paragraph 19 of his decision
letter. Because the applicant had those rights and wanted
more time to erect a replacement or replacements, the
inspector extended the applicant's time for complying with
the enforcement notice under ground (h).
Whether the existence of these General Development Order
rights provided sufficient reason for the inspector to
grant planning permission for the buildings in fact
erected, whether or not conditioned as suggested by the
applicant, was a matter for judgment - the inspector's
judgment. Whether another decision-maker would have
reached the same conclusion as did this inspector is not to
the point. Nor is the view of this court, which does not
sit on appeal from the judgment of inspectors, relevant.
I am unable to say that there was anything irrational in
the inspector's decision. In particular, the question
whether the alterations proposed to a building were, as he
evidently thought, a 'matter of cosmetics' and would not
meet the main objections was entirely a matter of planning
judgment for him. It is to be remembered that, in order to
stay within his General Development Order rights, the
applicant must erect replacement buildings which, by their
appearance and layout, could be considered as designed for
the purposes of agriculture. If they are, their effect on
the Green Belt, the countryside and the Conservation Area
is irrelevant to the exercise of that right. That does
not, however, in my judgment mean that the inspector acted
irrationally in concluding that the buildings in fact
erected without permission under the General Development
Order were objectionable and should be demolished. In the
result, I find no error of law and I dismiss the
application."
Leave to appeal to the Court of Appeal was refused. On
11 June 1991 the Court of Appeal also refused leave to appeal.
The relevant domestic law
By reason of Article 3 and Class A of Part 6 of Schedule 2 to the
General Development Order 1988, planning permission is granted for the
following development:
"A. The carrying out on agricultural land comprised of an
agricultural unit of -
(a) works for the erection, extension or alteration
of a building, or
(b) any excavation or engineering operations, reasonably
necessary for the purposes of agriculture within that unit."
Planning permission granted by the General Development Order is
known as deemed planning permission. Development is not permitted by
Class A by reason of paragraph A.1(c) if "a building, structure or
works not designed for the purposes of agriculture would be provided
on the land".
Section 64 TCPA provides that application may be made to the
local authority for a determination of whether planning permission is
required for proposed operations on land.
Section 174 (2) TCPA provides that an appeal against an
enforcement notice may be made to the Secretary of State on any of the
following grounds:
"(a) that planning permission ought to be granted for the
development to which the notice relates or, as the case may be,
that a condition or limitation alleged in the enforcement notice
not to have been complied with ought to be discharged:
(b) that the matters alleged in the notice do not constitute a
breach of planning control;
...
(g) that the steps required by the notice to be taken exceed what
is necessary to remedy any breach of planning control or to
achieve a purpose specified in Section 173 (4);
(h) that the period specified in the notice as the period within
which any step is to be taken falls short of what should
reasonably be allowed."
Section 289 TCPA provides for appeals against a decision of the
Secretary of State under Section 174. An appeal may be made to the
High Court on a point of law, or the Secretary of State may be required
to state a case for the opinion of the High Court (Section 289 (1)
TCPA).
COMPLAINTS
The applicant complains of the fact that the domestic authorities
considered that planning permission had not been granted by virtue of
the General Development Order on the ground that the buildings he
erected were not designed for agriculture. He considers that the
enforcement notice in his case was arbitrary because he could have
constructed unsightly steel-clad buildings which would have had a far
more detrimental environmental effect than the buildings he did erect.
He also complains that the High Court and the Court of Appeal did not
decide the facts of his case, so that he was deprived of a court with
full jurisdiction.
The applicant alleges violations of Article 1 of Protocol No. 1
and Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 October 1991 and registered
on 9 December 1991. On 6 July 1992 the Commission decided to
communicate the application to the respondent Government for
observations on the admissibility and merits of the issues arising
under Article 6 of the Convention. The Government submitted their
observations on 4 November 1992 and the applicant's observations in
reply were submitted on 29 December 1992. On 29 July 1993 the
Government submitted further information.
On 2 April 1993 the Commission decided to hold an oral hearing
on the admissibility and merits of the issues arising under Article 6
of the Convention. At the hearing, which was held on 14 October 1993,
the parties were represented as follows:
For the Government: Mr. I. Christie, Agent, Mr. D. Pannick Q.C.,
Counsel, Mr. D. Anderson, Counsel, and Ms. V. Harrison, Department of
the Environment, Adviser.
For the Applicant: Mr. R. Drabble, Counsel, Mr. E. Owen, Counsel, and
Mr. R. M. Napier, Solicitor, Messrs. Albinson, Napier & Co.. The
applicant and Mrs. Bryan were also present.
THE LAW
1. The applicant alleges violation of Article 1 of Protocol No. 1
(P1-1) to the Convention. Article 1 of Protocol No. 1 (P1-1) provides
as follows:
"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."
The Commission notes that the aim of the enforcement notice which
was served on the applicant was to limit the user of the property to
that which was permitted under domestic law. There must, accordingly,
be some doubt as to whether the applicant's right to the peaceful
enjoyment of his possessions has at all been interfered with. However,
assuming that there is such an interference, any limitation on use
requires justification in the public interest if it amounts to a
deprivation of possessions, or in the general interest if it
constitutes the control of property.
The Commission recalls that the Convention organs have found on
several occasions that Contracting States enjoy a wide discretion in
regulating planning matters (cf. Eur. Court H.R., Sporrong and Lönnroth
judgment of 23 September 1982, Series A no. 52, p. 26, para. 69, and,
in the context of United Kingdom legislation, Chater v. the United
Kingdom, No. 11723/85, Dec. 7.5.87, D.R. 52 p. 250, 256).
The Commission finds that the requirement on the applicant to
demolish the two brick buildings which he had erected, although it
involved him in some considerable expenditure, does not amount to a
deprivation of possessions, but a control of the use of property.
Accordingly, the Commission must supervise the lawfulness, purpose and
proportionality of the restrictions (cf, for example, Eur. Court H.R.,
Allan Jacobsson judgment of 25 October 1989, Series A no. 163, pp. 17 -
18, paras. 56-64). The Commission must determine whether, whilst
recognising the wide margin of appreciation afforded to States in
planning matters, a fair balance was struck between the general
interest of the community and the protection of the individual's
fundamental rights (cf. Chater v. the United Kingdom, No. 11723/85,
referred to above).
The Commission accepts that planning controls are necessary and
desirable in modern society in order to preserve and improve town and
country landscapes. The applicant does not regard the issue, service
and enforcement of the enforcement notice as in any way unlawful. The
Commission finds that the lawfulness and purpose of the interference
are established.
As to proportionality, the Commission would first note that, as
a general rule, the rights secured by Article 1 of Protocol No. 1
(P1-1) cannot be invoked in order to extend property rights in domestic
law by requiring planning permission for purposes which have never been
permitted. It notes that the inspector who held the enquiry into the
enforcement notice considered in some detail (at para. 14 of his
decision, pp 2-3 above) specific features of the buildings which, in
his opinion, led to the conclusion that they did not comply with the
requirements of the General Development Order. In deciding not to
grant express planning permission, the inspector noted that the
buildings were within both a green belt and a Conservation Area, and
that they neither enhanced nor preserved the appearance of the relevant
part of the Conservation Area.
The Commission further notes that if there had been doubt as to
whether the buildings complied with the general development order or
not, the applicant could have asked the local authority for a
determination of whether express permission was needed.
The inspector permitted an extension of the period permitted for
demolition of the buildings as he saw "no need to insist on a period
which would make for undue difficulty". He also canvassed the
possibility that the demolition of the buildings and removal of the
materials was an excessive requirement. He pointed out that harm to
the purpose of the green belt had been caused, and accepted that making
the buildings look more like the type of development which would have
been permitted could have mitigated a little of the harm he had
identified. He considered, however, that the main objection to the
building, that the buildings did not look as if they had been designed
for the purposes of agriculture, would remain.
The Commission notes the existence of an appeal to the High Court
on a point of law.
Whilst it is true, as the applicant states, that he could have
erected buildings which were designed for the purposes of agriculture
within the meaning of the planning legislation, and that those
buildings may have had a far more detrimental effect on the visual
amenity of the countryside, it is not for the Commission to determine
whether a decision, expressed in legislation, to provide for deemed
planning permission in one type of case rather than another, violates
Article 1 of Protocol No.1 (P1-1) as such. The Commission must
determine whether, in the case before it, the control of use struck a
fair balance between the conflicting interests.
In the light of the balancing exercise undertaken by the
inspector, together with the possibility of a limited review by the
High Court and the discretion accorded to the domestic authorities in
this type of case, the Commission finds that a proper balance has been
struck between the applicant's interests and the general interest.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention, contending that the review undertaken by
the High Court of the decision of the inspector was not of sufficient
scope to comply with the requirements of that Article. Article 6 para.
1 (Art. 6-1) provides as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing ... by an independent and impartial tribunal
established by law ..."
The Government consider that no Article 6 (Art. 6) rights were
determined by the proceedings, but that even assuming Article 6
(Art. 6) is applicable, it was complied with in that the proceedings
before the inspector fully observed its requirements, and that the
subsequent review by the High Court was of sufficient scope to satisfy
Article 6 (Art. 6). The Government had initially contended that the
applicant could have made an appeal under Section 288 TCPA, or that he
could have applied for judicial review of the inspector's / Secretary
of State's decision. This argument was withdrawn at the hearing before
the Commission.
The applicant points to the fact that the inspector is a salaried
employee of the Secretary of State for the Environment and that he can
be removed at any time. He further alleges that the High Court, which
is limited in its consideration of a case to points of law, is not in
general able to, and did not in this particular case, deal with the
central factual inferences which the inspector drew from the primary
facts.
The Commission finds that this part of the application raises
serious issues of law and fact under the Convention which can only be
resolved by an examination of the merits. It cannot therefore declare
it manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been contended or established.
For these reasons, the Commission,
by a majority, DECLARES INADMISSIBLE the applicant's complaints
relating to the peaceful enjoyment of his possessions;
unanimously, DECLARES ADMISSIBLE, without prejudging the merits,
the applicant's complaints relating to the proceedings at issue
in the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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