CASE OF PHOCAS v. FRANCE



        In the case of Phocas v. France (1),

        The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

        Mr R. Ryssdal, President,

        Mr L.-E. Pettiti,

        Mr C. Russo,

        Mrs E. Palm,

        Mr I. Foighel,

        Mr J.M. Morenilla,

        Mr F. Bigi,

        Mr K. Jungwiert,

        Mr P. Kuris,

and also of Mr H. Petzold, Registrar,

        Having deliberated in private on 22 June, 26 September,

24 November 1995 and 26 March 1996,

        Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1.  The case is numbered 39/1994/486/568.  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.

2.  Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9).  They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1.      The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 9 September 1994, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention.  It originated in an

application (no. 17869/91) against the French Republic lodged with the

Commission under Article 25 (art. 25) by a French national,

Mr Léopold Phocas, on 19 November 1990.

        The Commission's request referred to Articles 44 and 48 (art.

44, art. 48) and to the declaration whereby France recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46).  The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 1 of Protocol No. 1 (P1-1) to the Convention.

2.      In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30).

3.      The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)).  On 24 September 1994, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr C. Russo, Mrs E. Palm, Mr I. Foighel,

Mr J.M. Morenilla, Mr F. Bigi, Mr K. Jungwiert and Mr P. Kuris

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4.      As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the French

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings (Rules 37

para. 1 and 38).  Pursuant to the order made in consequence and the

extension of time subsequently granted by the President, the registry

received the applicant's and the Government's memorials on 1 February

and

7 March 1995 respectively.  On 13 April the Secretary to the Commission

indicated that the Delegate did not wish to reply in writing, and on

24 April he supplied various documents, as did the applicant on 12 and

17 July and 18 and 25 October and the Government on 31 October 1995,

as they had all been requested to do by the Registrar on the

President's instructions.

5.      In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

19 June 1995.  The Court had held a preparatory meeting beforehand.

        There appeared before the Court:

(a) for the Government

Mrs M. Merlin-Desmartis, administrative court judge

        on secondment to the Legal Affairs Department,

        Ministry of Foreign Affairs,                           Agent,

Mrs A. Brun, administrative assistant, Architecture

        and Town Planning Department, Ministry of

        Regional Development, Infrastructure and

        Transport,                                           Counsel;

(b) for the Commission

Mr I. Békés,                                                Delegate;

(c) for the applicant

Mr P. Calaffel, avocat,                                      Counsel.

        The Court heard addresses by Mr Békés, Mr Calaffel and

Mrs Merlin-Desmartis.

AS TO THE FACTS

I.      Circumstances of the case

6.      Mr Phocas was born in 1918 and lives in Montpellier.  From 1956

he owned and ran commercial premises occupying 275 sq. m at

Castelnau-le-Lez (in the département of Hérault), at the spot where one

road (the RN 113) crossed another (the CD 21).

        In a decision of 20 May 1960 the Minister of Public Works and

Transport adopted a scheme for improving the crossroads in question.

In 1962 the applicant, believing that expropriation was imminent,

transferred his greengrocery business to other premises.

A.      The proceedings relating to planning permission

        1.  The applications for planning permission

7.      Mr Phocas's property was not expropriated and he accordingly

decided to convert the building into eight flats by adding two floors.

To this end, on 1 March 1965, he applied for planning permission.

            (a)  The first decision to adjourn the application

8.      In an order of 31 July 1965 the Prefect of Hérault decided to

adjourn the application "until publication of the decision approving

the general development plan of the municipality of Castelnau-le-Lez",

on the ground that "in the present state of the surveys undertaken, it

appears that the project submitted [by the applicant] is likely to

jeopardise the carrying out of the scheme to improve the crossroads

..., which was adopted by the Minister of Public Works and Transport

...".

        That decision was confirmed on 30 March 1967 by the

département's Director of Infrastructure and Planning, who so indicated

in response to a fresh application by the applicant.

9.      On 31 July 1967 Mr Phocas sought a final decision from the

Prefect, as the period of adjournment had expired.

        As he did not receive any reply, he lodged an application with

the Montpellier Administrative Court on 2 December 1967 for judicial

review of the decisions of 31 July 1965 and 30 March 1967 and the

implied refusal of his application of 31 July 1967.

        The registrar sent him the following letter, dated

1 September 1971:

        "I should like to remind you that on 11 March 1968 you were

        sent a pleading ... by the Minister of Infrastructure and

        Housing.  In a memorandum of 29 May 1970 you informed us that

        you were awaiting a decision by the authorities that was due

        to be taken by May 1971 ...  As you have still not sent any

        pleading to the registry, I am taking the liberty of pointing

        out that it is desirable that you should send one to me as soon

        as possible or make known to the Court that you do not intend

        to reply."

        In a letter of 13 October 1971 Mr Phocas informed the Prefect

that he was not withdrawing the proceedings.

        On 22 September 1972 he nevertheless stated that he was

abandoning the action, and this was noted by the court in a judgment

of 16 October 1972.

            (b)  The second decision to adjourn the application

10.     The general development plan for Castelnau-le-Lez was published

on 20 March 1968.  It provided, among other things, for the acquisition

of part of the applicant's property by the authorities for the purpose

of the crossroads improvement and designated the rest as coming within

the area of land on which further building was not permitted.

11.     In an order of 9 October 1969 the Prefect of Hérault adjourned

a new application for planning permission that Mr Phocas had made on

13 May 1969 until publication of the decision approving the general

development plan of the municipality of Castelnau-le-Lez, on the ground

that "in the present state of the surveys undertaken, it appears that

the project submitted [by the applicant] is likely to jeopardise

implementation of the general development plan ... published on

20 March 1968 (building planned on land reserved for the improvement

of a crossroads formed by the RN 113 and the CD 21 and included in

newly designated areas on which further building is not permitted)".

        The general development plan was approved by the Prefect on the

same day.

12.     On 2 January 1970 the Ministry of Infrastructure and Housing

informed the applicant that the decision to defer was maintained but

that it was open to him under Article 28 of Decree no. 58-146 of

31 December 1958 (see paragraph 36 below) to ask the local authority

that was benefiting from the improvement scheme to purchase the

reserved part of the land within a period of three years.

13.     In a letter of 13 October 1971 to the Prefect Mr Phocas

requested a decision on his application for planning permission that

had been registered on 13 May 1969 (see paragraph 11 above) as the

period of adjournment had expired.

            (c)  The third decision to adjourn the application

14.     The proceedings to abandon his property having failed (see

paragraphs 18-26 below), the applicant made a fresh application for

planning permission on 17 July 1976, which the Prefect adjourned in an

order of 21 September 1976 on the ground that the Castelnau-le-Lez

land-use plan (the POS) - which was then being drawn up, pursuant to

a prefectoral order of 1 June 1973 - showed the property in question

as coming within an area reserved for the crossroads improvement.

        On 15 November 1976 Mr Phocas lodged an application for

judicial review with the Montpellier Administrative Court.  The

Minister of Infrastructure produced his observations on 16 June 1977

and documents on 29 June 1977.  The hearing took place on 15 December

1978.  On

8 January 1979 the court refused the application as follows:

        "Under Article L. 123-5 of the Town Planning Code, the

        administrative authority may, where a draft land-use plan is

        to be drawn up, adjourn applications for permission relating

        to buildings that would be likely to jeopardise implementation

        of the plan.  It is established that the prefectoral order of

        1 June 1973 required a land-use plan to be drawn up for the

        municipality of Castelnau-le-Lez.  It appears from the evidence

        that the roadworks envisaged in the plan include the widening

        of the RN 113 and of the CD 21 at the very spot occupied by the

        property of Mr Phocas's concerned in the building project

        referred to in the planning application of 15 July 1976.  That

        project was likely to jeopardise the roadworks.  It follows

        that Mr Phocas, who - seeing that the impugned order was not

        based on the development plan approved on 9 September 1969 -

        cannot rely on the expropriations judge's decision of 19 March

        1976 [see paragraph 26 below], in which it was held that Mr

        Phocas's property was not subject to any reservation under the

        plan, has no grounds for maintaining that the order of 21

        September 1976 in which the Prefect of Hérault adjourned his

        application for planning permission is unlawful."

        2.  The constructive planning permission

15.     At the end of the period of adjournment on 21 September 1976,

Mr Phocas sent the mayor of Castelnau-le-Lez a letter confirming his

application for planning permission.

        The mayor received the letter on 12 October 1978 and refused

the application in a decision of 12 December 1978 that was served on

the applicant on 14 December.

16.     On an application made by Mr Phocas on 9 February 1979, the

Montpellier Administrative Court set aside that decision on

7 February 1980 on the following grounds:

        "It appears from the documents submitted in evidence that at

        the end of the period of validity of the adjournment decided

        on by the Prefect Mr Phocas confirmed to the mayor of

        Castelnau-le-Lez his application for planning permission.  The

        mayor received this letter of confirmation on 12 October 1978.

        As the mayor failed to notify his decision to Mr Phocas before

        the expiry of the

        two-month period allowed by the provisions of Article L. 111-8

        of the Town Planning Code, Mr Phocas had constructive

        permission with effect from 13 December 1978.  The mayor of

        Castelnau-le-Lez's decision of 12 December 1978, notified on

        14 December 1978, must be regarded as having the effect of

        withdrawing that constructive permission.

        But the constructive permission which the applicant had could

        not lawfully be withdrawn within the time allowed for appeal

        unless it was itself unlawful.  Although Articles R. 111-3-1

        and

        R. 111-4 of the aforementioned Code allow the relevant

        authority to refuse permission or to grant it, in the cases

        referred to in the aforesaid Article R. 111-3-1 and in

        paragraph 2 of

        Article R. 111-4 subject to compliance with special directions,

        it was for the authorities to examine, during the process of

        considering the planning application, which had been reopened

        by the confirmation of 12 October 1978, whether ... the

        building to which it was proposed to make alterations ... was

        liable to be exposed to serious nuisance within the meaning of

        the aforementioned Article R. 111-3-1 and to assess whether

        access to the land affected by the project was insufficient

        within the meaning of the aforesaid Article R. 111-4 and

        whether the means of access to the building endangered the

        safety of those using them.  By failing to notify a refusal

        within the time provided for in Article L. 111-8 of the Town

        Planning Code, the authorities must be deemed to have taken the

        view that there was no reason in this case to refuse permission

        under

        Articles R. 111-3-1 and R. 111-4 of that Code.  It does not

        appear from the evidence that there was any manifest error in

        that assessment.  Accordingly, the permission tacitly granted

        to Mr Phocas was not unlawful.  It follows from the foregoing

        that the mayor of Castelnau's decision of 12 December 1978,

        which had the effect of withdrawing that permission, is

        unlawful and must be set aside.

        ..."

17.     On 19 May 1983 the Conseil d'Etat dismissed an appeal brought

by the Minister for the Environment and the Quality of Life on

14 April 1980:

        "Whether there was constructive planning permission

        Under Article L. 111-8 of the Town Planning Code, '... when the

        period of validity of the adjournment expires, a decision must,

        on confirmation by the person concerned of his application, be

        taken by the administrative authority responsible for granting

        permission, within two months of that confirmation.  Failing

        notification of the decision within this time, permission shall

        be deemed to have been granted as applied for'.  The date of

        notification shall be that shown by the Post Office date-stamp

        on the recorded-delivery form that has to be signed by the

        applicant when he receives notification of the authorities'

        decision on his planning application.

        It appears from the evidence that on expiry of the adjournment

        decided on by the Prefect of Hérault, Mr Phocas confirmed his

        planning application in a letter received by the mayor of

        Castelnau-le-Lez on 12 October 1978.  Not having received

        notification of a decision by the mayor of that municipality

        within the two-month period laid down in the aforementioned

        Article of the Town Planning Code, Mr Phocas had constructive

        planning permission.  When, on 14 December 1978, Mr Phocas

        received notification of the mayor of Castelnau-le-Lez's

        decision of 12 December 1978 whereby planning permission was

        refused, that decision had to be regarded as withdrawing the

        constructive permission.

        The lawfulness of the impugned decision

        By the terms of the second paragraph of Article R. 111-4 of the

        Town Planning Code, planning permission 'may lawfully be

        refused if the means of access endanger the safety of users of

        the highway or persons using those means of access'.  It was

        for the authorities to determine during the process of

        considering the planning application which had been reopened

        by the confirmation of 12 October 1978 whether access to the

        block of eight flats planned by Mr Phocas constituted a danger

        to users of the highways.  In failing to notify a refusal, the

        authorities determined that there was no reason in this case

        to refuse permission under Article R. 111-4 of the

        aforementioned Code.  It does not appear from the evidence that

        there was any manifest error in the authorities' assessment.

        The original permission was thus in no way unlawful and

        consequently could not be lawfully revoked.  Accordingly, the

        Minister has no grounds for maintaining that the Administrative

        Court was wrong to set aside the decision of 12 December 1978

        whereby the mayor of

        Castelnau-le-Lez withdrew the constructive planning permission

        granted to Mr Phocas."

        The applicant thus retrospectively had constructive planning

permission from 12 December 1978.

B.      The proceedings to abandon property

        1.  The applicant's requests to have his property purchased

18.     In response to the letter of 2 January 1970 from the Ministry

of Infrastructure and Housing (see paragraph 12 above), Mr Phocas

applied in writing to the département's Director of Infrastructure on

27 May 1970 for "steps to be taken as soon as possible to purchase

[his] property".

        He referred to this last letter when writing to the Prefect on

13 October 1971 (see paragraph 13 above), and on 13 May 1972 sent the

Prefect the following letter:

        "Pursuant to Article 28 of Decree no. 58.146 of 31 December

        1958 I am writing to confirm my letter of 27 May 1970 ...

        Inasmuch as it may be necessary, I am hereby renewing that

        application and would point out that it is being sent to you

        in your capacity as representative of the State and also in

        your capacity as representative of the département of Hérault.

        I am at your department's disposal for the purpose of reaching

        an agreement on the purchase price.

        ..."

19.     In a telephone conversation on 17 July 1972 an official from

the State Lands Department allegedly invited the applicant to an

interview in order to settle the purchase price by agreement.  A

meeting is said to have taken place on 26 January 1973, followed by

several telephone conversations, but without result.

20.     On 2 June 1973 Mr Phocas sent the Prefect of Hérault the

following letter:

        "...

        After the interview at your offices on Tuesday 29 May last,

        during which a promise was made that the formalities for

        purchasing my property at Castelnau-le-Lez ... would be carried

        out very speedily, I feel it necessary, in order that this

        unfortunate matter may be dealt with as satisfactorily as

        possible, to assure you that I have not changed my mind.  I

        would thus like to point out to your department that with

        reference to my letter of 27 May 1970, in which I requested,

        pursuant to my rights, that my property should very speedily

        be purchased, I am earnestly reiterating that request, as the

        three-year period provided for in law has now elapsed.

        ..."

        2.  The administrative authorities' purchase offer

21.     On 7 November 1974 the département's Director of Infrastructure

wrote to the applicant making an offer to purchase for the sum of

142,500 French francs (FRF).

22.     On 20 January 1975 Mr Phocas sent the Director the following

letter in reply:

        "Thank you for your letter of 7 November 1974, received after

        considerable delay, replying after a wait of four and a half

        years to the one I sent on 27 May 1970 requesting that my

        property should be purchased.

        Seeing that the State Lands Department set their procedure in

        motion on 17 July 1972 (they sent you letters on 18 May 1972

        and 13 September 1972, without receiving any reply

        incidentally), it is really very surprising that your offer

        could not have been made within a more reasonable time.  The

        small amount offered is equally surprising, since how can you

        suppose that with the derisory sum of 142,500 francs I can buy

        a property more or less the same as the one which has been the

        subject of such unfortunate disagreements.  As the victim of

        an unacceptable situation over so many years, I can obviously

        only maintain my original application.  May I, lastly, point

        out that when asked about the value of my property by Mr

        Pélissier, an engineer in the Department of Infrastructure, I

        gave him the figure in reply of 300,000 francs some days

        afterwards, in the presence of

        Mr Miguel, the engineer's secretary.

        I await a proper assessment.

        ..."

23.     The département's Director of Infrastructure replied as follows

on 4 February 1975:

        "Thank you for your letter of [illegible] January in which you

        refused the offer of compensation for the property you own at

        Castelnau-le-Lez and ask for a higher offer to be made with

        reference to your own [illegible] of 1962.

        I am sorry to have to tell you that the scheme justifying the

        purchase of your property relates to the improvement of the RN

        [illegible], for this [illegible], compensation for buildings

        lies within the exclusive discretion of the Commissioner of

        Revenue.

        That is why, in my letter of 7 November, I referred to that

        head of department's opinion.

        As the potential purchasing department, I have no discretion

        to alter offers [illegible] by the Revenue.

        If, therefore, you maintain your formal application [illegible]

        purchase by the State, you must, in accordance with the

        legislative provisions (Article [illegible] of the Town

        Planning Code) apply to the expropriations judge to fix the

        compensation due to you."

24.     On 16 May 1975 the département's Director of Infrastructure

sent Mr Phocas the following letter:

        "I write to confirm my letter of 4 February, in which I told

        you, firstly, of the Revenue's decision and, secondly, of the

        means afforded you by current legislation of securing an

        adjustment of the amount of the dispossession compensation that

        I had offered you for your property ...

        I do not think that you have, to date, applied to the

        appropriate judicial authority.  I am therefore entitled to

        assume that you have withdrawn your application to the

        administrative authorities to purchase the property in

        question.

        I should be very grateful if you would let me know whether that

        assumption is correct or whether you are still maintaining the

        formal application you have already made.  Unless I hear from

        you within eight days, I shall assume that you have given up

        your project and, in that case, I shall put back at the

        disposal of the higher authorities the budgetary appropriation

        that had been made available to me to meet the foreseen

        expenditure on purchase."

25.     Mr Phocas's lawyer wrote to his client as follows on 22 May

1975:

        "I have seen the Department of Infrastructure's letter of 16

        May.

        I would advise you to send a registered letter with recorded

        delivery to the département's Director of Infrastructure ...

        immediately, worded as follows:

            'In reply to your letter ... of 16 May, I am writing to

            inform you that I have not given up my intention of

            demanding expropriation.

            I am currently assembling the information that will enable

            me to justify the expropriation compensation that I shall

            be claiming.'"

        3.  The application to the expropriations judge

26.     On 20 October 1975 the applicant applied to the Hérault

expropriations judge in order to have the purchase price determined.

        On 8 December 1975 the département's Director of Infrastructure

wrote to Mr Phocas as follows:

        "I am sending you herewith a memorandum setting out the

        particulars of and justification for the dispossession

        compensation offered by the expropriating authority for the

        parcel of land ... in respect of which an expropriation order

        is likely to be made.

        The purchase offer, which you have not to date accepted, was

        notified to you by registered letter with recorded delivery on

        7 November 1974.

        ...

        PS. By the same post I am sending the expropriations judge two

        photocopies of the memorandum and of this letter."

        The expropriations judge made a visit to the site on

15 December 1975 and held a hearing on 29 January 1976.  On

19 March 1976 he delivered the following judgment:

        "...

        The function of the expropriations judge is confined to fixing

        the amount of expropriation compensation.

        In the instant case Mr Phocas, having failed to secure planning

        permission, made an application to the Director of

        Infrastructure in a letter of 27 May 1970 seeking to have [the]

        property purchased, an application that was renewed in a letter

        to the Prefect of Hérault on 13 May 1972.

        The Department of Infrastructure offered a purchase price of

        142,500 francs, which was not accepted, and Mr Phocas then

        applied, in written submissions of 16 October 1975 ..., for the

        price of the property to be fixed.

        As the land is no longer subject to the restriction laid down

        in the development plan approved on 9 June 1969 and has not

        been purchased or expropriated within three years of the

        application, in accordance with the provisions of the Decree

        of

        31 December 1958, the owner is again able to dispose of it

        freely.

        It further appears from the circumstances of the case, in

        particular from the mayor of Castelnau's letter of 15 March

        1976, that the land-use plan of the municipality of Castelnau-

        le-Lez has not yet been published or implemented.

        In these circumstances no valid application may be made to the

        expropriations judge to value the land, and still less the

        building on it, as Article 123-9 of the Town Planning Code is

        not applicable in this case.

        For these reasons,

        I, ..., expropriations judge for the département of Hérault

        ...,

        Declare that I have no jurisdiction.

        ..."

C.      The expropriation proceedings

27.     On 7 March 1980 the Prefect of Hérault ordered a public inquiry

prior to expropriation and then, on 25 September 1980, declared the

crossroads improvement scheme to be in the public interest and urgent.

On 23 February 1981 he declared Mr Phocas's property liable to

expropriation.

28.     The expropriation order was made on 2 March 1981.

        Whereas the applicant had claimed FRF 2,903,000, compensation

for his expropriation was assessed on 19 June 1981 at FRF 385,000 by

the expropriations judge of Hérault, to whom an application had been

made on 15 December 1980, and then, on appeal, at FRF 394,440 by the

Expropriations Division of the Court of Appeal of Hérault on

22 January 1982.

        In an order of 23 June 1982 the President of the Court of

Cassation recorded that Mr Phocas had withdrawn an appeal on points of

law that he had lodged against the Court of Appeal's judgment.

D.      The proceedings to obtain compensation

        1.  The first set of compensation proceedings

            (a)  The application to the Minister of Town Planning and

                 Housing

29.     On 8 January 1982 the applicant submitted a preliminary

compensation claim to the Minister of Town Planning and Housing, who

refused it on 18 May 1982 in the following terms:

        "... you sought compensation in the amount of FRF 2,750,000 for

        damage resulting from actions by the administrative authorities

        amounting to an interference with your building plans.

        It should be pointed out that payment of compensation to

        members of the public in town-planning matters is subject to

        its being established that there has been fault arising from

        an unlawful act and definite direct, pecuniary damage.

        As to the first point, it appears that between 1 March 1965 and

        8 January 1979 the decisions adverse to you that were taken all

        became final, either because they were not challenged or

        because their lawfulness was confirmed by the Administrative

        Court.

        The only head of damage on which you might be able to rely

        would be that arising if the Conseil d'Etat were to affirm the

        Montpellier Administrative Court's judgment of 7 February 1980.

        This case, however, is still pending in the Conseil d'Etat,

        with which I lodged an appeal against the aforementioned

        judgment on 14 April 1980.

        As to the second point, it should be noted that any fault

        stemming from the unlawfulness of the refusal of planning

        permission on 12 December 1978 would only be able to have any

        consequences if there was definite direct, pecuniary damage.

        The breakdown you have supplied, however, is based on loss of

        capital in real property and of expected income from real

        property, together with the interest on that income.  That

        damage is contingent, and the courts have consistently held

        that such damage cannot give rise to compensation.

        Lastly, I would point out that in respect of the existing

        building, you have already received expropriation compensation

        of FRF 394,440.

        It follows from the foregoing that I cannot grant your

        application."

            (b)  In the Montpellier Administrative Court

30.     On 16 June 1982 Mr Phocas lodged a claim for compensation with

the Montpellier Administrative Court.  He argued that through their

conduct the authorities had unlawfully infringed his right of property

and had caused him damage that he assessed at FRF 3,212,235.

        The court received observations from the Minister of Town

Planning and Housing on 10 October 1983 and pleadings in reply from the

applicant on 20 and 22 November 1984.  It held a hearing on 23 November

and decided on 27 November to reopen the inquiry into the facts:

        "... the applicant lodged with the Court two pleadings

        registered on 20 and 22 November 1984, to which the

        administrative authorities were not able to reply as they had

        been lodged late.  In the final version of his submissions Mr

        Phocas relied, in support of his compensation claim, on, among

        other things, the 'dishonest conduct' of which he had been the

        victim on the part of the authorities, who had continually

        blocked the reiterated applications for planning permission

        that he had made since 1962.  The fact that the decisions are

        final does not preclude pleading, in support of a compensation

        claim, that the decisions taken by the administrative

        authorities on those applications were unlawful.  That being

        so, further inquiries into the facts should be ordered, so as

        to allow the administrative authorities to reply to the

        arguments set out in the aforementioned pleadings."

        Following that judgment, the court registered pleadings from

the Minister on 21 January and 23 July 1985 and from the applicant on

23 May, 12 August and 25 September 1985.

        It held a hearing on 21 March 1986, and on 3 June 1986 it

delivered its judgment, in which the following reasons were given:

        "Mr Phocas sought compensation for damage he had allegedly

        sustained as the result of successive unlawful decisions taken

        by the authorities since 1968 which had had the effect of

        preventing him from building on a parcel of land that had been

        expropriated and compensation for which was assessed in a

        judgment of 19 June 1981.

        In the first place, in so far as Mr Phocas intended to

        challenge in the Administrative Court the amount of

        expropriation compensation awarded him ... on the ground that

        the court had not had regard to the right that he considered

        he had to build on the parcel of land in question, his

        submissions must be rejected as having been made to a court

        without jurisdiction to entertain them.  Nor can he secure

        compensation on the basis of the provisions of Article L. 160,

        second paragraph, of the Town Planning Code, seeing that for

        want of planning permission or a prior agreement, he could not

        rely on an established right preceding the imposition of the

        restriction placed on his land.

        In the second place, while a decision on the building project

        submitted by Mr Phocas has been deferred on three successive

        occasions, it does not appear from the inquiries into the facts

        that those adjournments ... were unlawful.  The public interest

        in the improvement scheme planned on Mr Phocas's land cannot

        be seriously contested.  Mr Phocas, however, had obtained

        planning permission on 12 December 1978 which was withdrawn

        unlawfully, as held in a judgment of this Court on 7 February

        1980.  An irregularity of this kind amounts to misfeasance such

        as to engage the State's responsibility.

        As to damage

        Mr Phocas cannot be compensated for the increase in the cost

        of building when he never carried out any building works or for

        the mere possibility of loss of the income he expected to

        derive from letting the future flats, any more than he can be

        for the expenses he had to incur as a result of transferring

        his business to the wholesale market for agricultural produce

        at Montpellier, which are unconnected with the unlawful

        decision.

        Mr Phocas, however, needlessly incurred expenditure on

        preparing the application for the planning permission which was

        unlawfully withdrawn, notably architect's fees; these expenses

        as a whole may be fairly assessed in the instant case at 10,000

        francs.  The State must accordingly be ordered to pay Mr Phocas

        the sum of 10,000 francs, including all interest up to the date

        of this judgment."

            (c)  In the Conseil d'Etat

31.     On 11 August 1986 Mr Phocas appealed to the Conseil d'Etat.

He filed a supplementary pleading that was registered on 10 December

1986.  He also produced a pleading in reply to defence observations

submitted by the Minister of Infrastructure.

        The Conseil d'Etat held a hearing on 11 May 1990, and on

25 May 1990 it upheld the judgment of 3 June 1986 as follows:

        "...

        In his claim for compensation Mr Phocas sought compensation for

        damage allegedly caused him by the successive decisions of the

        administrative authorities in response to applications he had

        submitted since 1965 for planning permission for extending and

        adding storeys to a building he owned at the crossroads of the

        RN 113 and the CD 21 at Castelnau-le-Lez.

        It appears from the inquiry into the facts that the planned

        crossroads improvement scheme cited as the reason for decisions

        whereby Mr Phocas's applications were refused was in the public

        interest.  The adjournment decisions of 31 July 1965 and

        9 October 1969 were lawfully taken on the basis of Article 18

        of the ... Decree of 30 December 1958, which was then in force.

        Admittedly, on 12 December 1978 Mr Phocas had secured planning

        permission, which was unlawfully withdrawn.  While that

        irregularity amounts to misfeasance such as could render the

        State liable, Mr Phocas did not adduce in support of his

        submissions any factual evidence that would make it possible

        to take into account damage dismissed by the Administrative

        Court as contingent, which arose from the loss of earnings

        sustained because it was impossible for the applicant to

        undertake the works to extend his building.  It does not appear

        from the inquiry into the facts that the Administrative Court

        assessed the circumstances of the case inaccurately when it

        ordered the State to pay compensation in the amount of FRF

        10,000.

        ..."

        2.  The second set of compensation proceedings

            (a)  In the Montpellier Administrative Court

32.     On 12 December 1990 the applicant applied to the Administrative

Court, seeking an order that the State should pay him compensation in

the amount of FRF 2,998,000 for the losses caused him by the

administrative decisions on planning permission and expropriation taken

in his regard: losses of capital in real property and of income from

real property and the interest on it; loss of the letting right (droit

au bail); and losses resulting from the transfer of the goodwill.

33.     The court dismissed the application on 4 November 1992 on the

following grounds:

        "...

        As to the orders sought against the State

        Mr Phocas's ... submissions are based on, inter alia, decisions

        he considers unlawful whereby his applications for planning

        permission were adjourned or refused.  In the earlier

        proceedings ... the Court gave a ruling in a judgment of 3 June

        1986, upheld by the Conseil d'Etat on 25 May 1990, and refused

        the applications for compensation based on the same legal

        grounds and in respect of damage of the same nature as that

        alleged in the instant application ...

        The Prefect consequently has good cause to maintain that the

        submissions in the present proceedings, in so far as they are

        directed against the State on the basis of administrative

        decisions taken by his officials, raise matters that are res

        judicata and must accordingly fail, without there being any

        need to consider the grounds based on a violation of Articles

        1 and 6 (art. 1, art. 6) of the European Convention on Human

        Rights.

        As to the application against the département of Hérault

        ...

        Mr Phocas bases the above-mentioned application against the

        aforementioned département on the slowness, amounting in his

        view to misfeasance, with which the administrative authorities

        dealt with his application to them of 27 May 1970, confirmed

        on

        13 May 1972, to purchase his property.  In this connection, it

        is apparent from the provisions of Article 28 of the Decree of

        31 December 1958 that 'an owner of reserved land may request

        the public authority for whose benefit the land has been

        reserved to purchase the land within a period of three years

        from the date of the application.  Failing agreement between

        the parties, the price shall be determined as for an

        expropriation, the land being deemed to have ceased to be

        reserved.  If the purchase has not taken place within the

        aforementioned period, the owner shall be able to dispose of

        his land freely again'.  Furthermore,

        Article 18 of the Town Planning and Housing Code, as worded

        following Law no. 67-1253 of 30 December 1967 provides that `an

        owner of land reserved in a land-use plan for a public highway

        or other public works ... may, from the day on which the plan

        was published, ..., require the local authority ... for whose

        benefit the land has been reserved to purchase the land within

        a maximum period of three years from the date of the

        application ...  Failing agreement between the parties at the

        end of the period referred to ..., the expropriations judge,

        on an application by the owner, shall declare ownership to have

        been transferred and shall determine the price of the land

        ...'.  It was therefore for Mr Phocas to take the initiative

        of applying to the expropriations judge within the allotted

        time after the failure, noted at the end of the discussions on

        24 January 1973, of attempts to agree a purchase price for his

        property.  It appears from the evidence that Mr Phocas did not

        apply to the expropriations judge until 20 October 1975.  Mr

        Phocas therefore has no cause to maintain that the département

        of Hérault was guilty of misfeasance in not acting promptly on

        the request to purchase his land.  Since the statute itself

        has, by means of the procedure laid down in the aforementioned

        Articles, provided for compensation for owners affected by a

        reservation of land for the benefit of a public authority, Mr

        Phocas cannot in any event claim compensation from the

        département of Hérault on the basis that there has been a

        breach of equality vis-à-vis public burdens.

        Nor has any fact been made out against the département of

        Hérault, the expropriating authority, which discloses a misuse

        of powers or could amount to an interference with the proper

        conduct of the expropriation proceedings brought in April 1980,

        which resulted in the expropriation order of 22 April 1981 and

        gave rise, for the purposes of Articles 1 and 6 (art. 1, art.

        6) of the European Convention on Human Rights, to the appeal

        to the appellate court, which increased the expropriation

        compensation that had been fixed by the expropriations judge.

        ..."

            (b)  In the Bordeaux Administrative Court of Appeal

34.     On 6 January 1993 the applicant appealed against that judgment

to the Bordeaux Administrative Court of Appeal.

        On 6 February 1995 he requested it to stay its decision pending

the judgment of the European Court of Human Rights.

        In a judgment of 9 March 1995 the Administrative Court of

Appeal found against him and ordered him to pay FRF 3,000 to the

département of Hérault pursuant to the provisions of Article L. 8-1 of

the Administrative Courts and Administrative Courts of Appeal Code

(expenses incurred by the département that were not covered by costs).

It said the following as to the application against the département:

        "It appears from the inquiry into the facts that the scheme to

        improve the crossroads of the RN 113 and the CD 21 at

        Castelnau-le-Lez was adopted by the Ministry of Transport on

        10 May 1960.  It was on that ground that on 1 March 1965 a

        planning application by Mr Phocas was adjourned for the first

        time.  The scheme was abandoned in 1970 and then taken up again

        by the département of Hérault in 1971.  Subsequently, two

        further adjournments and a number of refusals of planning

        permission were notified to the applicant because the site was

        shown in the various planning documents as being reserved for

        the improvement of the crossroads.  As early as 27 May 1970 Mr

        Phocas sought to have his property purchased, and his

        application to that effect was confirmed on 13 May 1972, 2 June

        1973 and 7 November 1974.  Although he himself delayed in

        applying to the expropriations judge under the provisions of

        Article 28 of the Decree of

        21 December 1958, following the failure to agree on a purchase

        price, this does not alter the fact that the expropriation did

        not finally take place until 2 March 1981.  While such a delay

        is in itself capable of rendering the expropriating authority

        liable on the basis of a breach of equality vis-à-vis public

        burdens, it is at all events for the applicant to prove

        special, abnormal damage.

        In this connection, Mr Phocas cannot be compensated for the

        cost of building works that were never carried out.  As regards

        the loss of the income he expected to derive from letting the

        future flats, Mr Phocas did not adduce in support of his

        quantified claim any evidence relating specifically to the

        stage reached by the extension project or to his means of

        financing that would enable the definite, direct nature of the

        damage to be established.

        Lastly, it does not appear that the expenses which Mr Phocas

        had to incur on account of the transfer of his business in 1962

        to the wholesale market for agricultural produce at Montpellier

        had any direct link with the expropriation proceedings, which

        had not been set in motion by then.  That being so, Mr Phocas,

        who was not deprived of the enjoyment of his property at any

        stage during the administrative phase of the expropriation, has

        not made out any special, abnormal damage such as would entitle

        him to compensation.

        ..."

II.     Relevant domestic law

35.     Below are set out the main rules relating to general

development plans and land-use plans that were applicable in the

instant case.

A.      General development plans

36.     Development plans were governed by Decree no. 58-146 of

31 December 1958.  The provisions of the decree relevant to the instant

case are the following:

                              "Article 1

        The general development plan shall lay down the general outline

        of development and determine the essential features ...

        General development plans ... shall apply either to

        municipalities or to parts of municipalities or to groups of

        municipalities or parts of municipalities with interests in

        common.

        ...

        Chapter I - Subject-matter of development plans

                               Article 2

        The general development plan shall contain

        firstly,

        a designation of land in zones according to use;

        the routes of the main trunk roads to be retained, changed or

        built, with their width and characteristics;

        the sites reserved for the main public facilities and open

        spaces;

        ...

        secondly,

        (Decree no. 62-460 of 13 April 1962) 'Regulations laying down

        rules and restrictions on the use of land which are justified

        by the nature of the region or of the built-up area or by

        general or local needs and by the needs of civilian disaster

        relief or the running of public services.'

        These restrictions may, where appropriate, include a

        prohibition on building.

        ...

        Chapter II - Drawing up of development plans

        ...

                               Article 8

        A prefectoral order shall list, for each département, the

        groups of municipalities, municipalities or parts of

        municipalities in which development plans must compulsorily be

        drawn up.

        This list ... shall be published in the département's

        compendium of administrative decisions.

        ...

        Section I - General development plans

                              Article 10

        After consultation of the authorities concerned, the general

        development plan shall be submitted to a conference between the

        departments concerned.

        It shall then be made public, either by a decision of the

        Prefect where the departments concerned have made known their

        agreement, or by a decision of the Minister of Construction in

        other cases.

        ...

                              Article 12

        The general development plan shall be the subject of a public

        inquiry as provided for in respect of an expropriation.

        ...

                              Article 13

        Approval of development plans shall be given

        by the Prefect, where the development plan concerns a

        municipality or group of municipalities with a population of

        less than 50,000 and where, furthermore, the findings of the

        public inquiry and the opinions of the departments concerned

        and of the public authorities are not unfavourable;

        ...

        Section II - Detailed development plans

        ...

        Section III - Summary development plans

        ...

        Chapter III - Protection and implementation measures

        Section I - Protection measures prior to approval of

        development plans

                              Article 17

        The protection measures provided for in this section shall

        apply to general development plans from the time of the

        publication referred to in Article 8 above until publication

        of the decisions approving the plans.

        ...

                              Article 18

        ...

        Where a building is likely to jeopardise implementation of the

        development plan or make it more expensive, the Prefect may

        decide, in a reasoned order served on the petitioner and the

        mayor within the time and in the manner provided in Article 87

        of the Town Planning and Housing Code, to adjourn the

        application [for planning permission].

        ...

                              Article 23

        ...

        Once the decision has been taken whereby the general

        development plan has been published pursuant to Article 10

        above, decisions to adjourn can only be founded on provisions

        contained in the plan.

        Within two months of their notification, decisions to adjourn

        may be referred to the Minister of Construction, who may either

        confirm the adjournment or grant the permission sought.

                              Article 24

        In no case may an adjournment exceed two years.

        At the end of that period a final decision must, on an

        application by the applicant in a registered letter, be taken

        by the authority responsible for giving permission in the

        prescribed manner and within the prescribed time.  Permission

        may not be refused for reasons derived from provisions of a

        development plan that has not yet been approved, unless it has

        been published and contains provisions that expressly preclude

        the carrying out of the envisaged project.

        ...

        Section II - Measures to implement development plans

                              Article 26

        No public or private works to be undertaken within the area

        covered by the development plan may be carried out unless they

        are compatible with that plan.

        ...

                              Article 27

        ...

        Where a building is to be erected on a site reserved, in an

        approved development plan, for a road, open space or public

        service, planning permission shall be refused.

                              Article 28

        An owner of reserved land may request the local authority or

        public institution for whose benefit the land has been reserved

        to purchase the land within a period of three years from the

        date of the application.

        Failing agreement between the parties, the price shall be

        determined as for an expropriation, the land being deemed to

        have ceased to be reserved.

        If the purchase has not taken place within the aforementioned

        period, the owner shall be able to dispose of his land freely

        again.

        ..."

B.      Land-use plans

37.     Pursuant to the Land Planning Act of 30 December 1967, general

development plans were gradually replaced by land-use plans (POS),

which contain at least a zoning plan and rules on the siting of

buildings and may also, among other things, designate areas reserved

for public roads and other works and for facilities for the benefit of

the public (see, in particular, Article L. 123-1 and the transitional

provisions of Article L. 124-1 of the Town Planning Code).

38.     Where a POS is to be drawn up, the relevant authority may, in

a reasoned decision and for a period not exceeding two years, decide

to adjourn applications for permission relating to buildings,

installations or operations which would be likely to jeopardise

implementation of the future plan or make it more expensive

(Article L. 123-5 of the Town Planning Code).

        On expiry of the period of validity of the adjournment, if the

applicant confirms his application within two months, the authority

responsible for giving permission must take a final decision within two

months of that confirmation.  If the decision has not been notified

within this period, permission is deemed to have been granted in the

terms in which it was requested (Article L. 111-8, fourth paragraph,

of the Town Planning Code).

PROCEEDINGS BEFORE THE COMMISSION

39.     Before the Commission, to which he applied on 19 November 1990,

Mr Phocas complained of an infringement of his right of property

(Article 1 of Protocol No. 1) (P1-1) and of the slowness of the

proceedings in the French administrative courts (Article 6 para. 1 of

the Convention) (art. 6-1).

40.     The Commission declared the application (no. 17869/91)

admissible on 29 November 1993.  In its report of 4 July 1994 (Article

31)

(art. 31), it expressed the unanimous opinion that there had been a

breach of Article 1 of Protocol No. 1 (P1-1) and that it was

unnecessary to consider the complaint based on Article 6 para. 1

(art. 6-1) of the Convention.

        The full text of the Commission's opinion is reproduced as an

annex to this judgment (1).

_______________

1.  Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (in Reports of Judgments

and Decisions - 1996-II), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

41.     The applicant sought "judgment against the French State and an

order that it should pay damages".

42.     The Government asked the Court "to dismiss the application".

AS TO THE LAW

I.      ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

43.     The applicant complained of the restrictions imposed on his

right of property on account of the scheme for improving the crossroads

where his property was situated.  In his submission, their duration and

the French authorities' conduct amounted to a breach of Article 1 of

Protocol No. 1 (P1-1), which provides:

        "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."

44.     It must be ascertained whether there was an interference with

the right in question and, if so, whether it was justified.

A.      Whether there was an interference with the applicant's right

        of property

45.     It was not contested that the measures relating to Mr Phocas's

property amounted to an interference with his right to the peaceful

enjoyment of his possessions, but the duration of that interference was

disputed.

46.     The applicant maintained that the interference with the

peaceful enjoyment of his possessions had begun in 1962, when,

believing that expropriation was imminent, he had transferred his

business to other premises, and had ended on 22 January 1982, when the

Expropriations Division of the Court of Appeal of Hérault had fixed his

expropriation compensation on appeal.

47.     In the Government's submission, the events that had taken place

before France ratified Protocol No. 1 (P1) on 3 May 1974 could not be

taken into consideration since Mr Phocas's complaints did not concern

a continuous situation.  At all events, the starting-point of the

interference could not be earlier than 31 July 1965, when the

applicant's first application for planning permission had been

adjourned.  The interference had ended in the middle of 1973, when the

expropriations judge would have fixed the purchase price if Mr Phocas

had applied to him within the statutory time-limit.

48.     The Commission considered that the events which had affected

the enjoyment of the applicant's possessions before 3 May 1974 could

be taken into account inasmuch as they had affected the situation in

which the applicant found himself after that date.  Nevertheless, it

did not determine the precise length of the interference in question.

49.     The Court notes that on 31 July 1965 the Prefect of Hérault

decided to adjourn the application lodged by Mr Phocas on 1 March 1965

"until publication of the decision approving the general development

plan of the municipality of Castelnau-le-Lez", on the ground that "in

the present state of the surveys undertaken, it appears that the

project submitted [by the applicant] is likely to jeopardise the

carrying out of the scheme to improve the crossroads ..., which was

adopted by the Minister of Public Works and Transport ..." (see

paragraph 8 above).  From that moment up to 22 January 1982, the date

of the judgment in which the Expropriations Division of the Court of

Appeal of Hérault finally determined the expropriation compensation

(see paragraph 28 above), the crossroads scheme was an obstacle to the

development of the applicant's property but the applicant was not

compensated for this.  During the period thus delimited, there was the

necessary continuity in Mr Phocas's situation for the Court to be able

to take into account events that occurred before France ratified

Protocol No. 1 (P1).

        In short, from 31 July 1965 to 22 January 1982 there was an

interference with the right secured to the applicant by Article 1 of

that Protocol (P1-1).

B.      Justification for the interference with the applicant's right

        of property

50.     It remains to be determined whether that interference

contravened Article 1 (P1-1).

        1.  The applicable rule

51.     Article 1 (P1-1) guarantees in substance the right of property.

It comprises three distinct rules.  The first, which is expressed in

the first sentence of the first paragraph (P1-1) and is of a general

nature, lays down the principle of peaceful enjoyment of property.  The

second rule, in the second sentence of the same paragraph (P1-1),

covers deprivation of possessions and makes it subject to certain

conditions.  The third, contained in the second paragraph (P1-1),

recognises that the Contracting States are entitled, amongst other

things, to control the use of property in accordance with the general

interest, by enforcing such laws as they deem necessary for the

purpose.  However, the rules are not "distinct" in the sense of being

unconnected: the second and third rules are concerned with particular

instances of interference with the right to peaceful enjoyment of

property.  They must therefore be construed in the light of the general

principle laid down in the first rule (see, among other authorities,

the Mellacher and Others v. Austria judgment of 19 December 1989,

Series A no. 169, pp. 24-25, para. 42).

52.     Like the Commission and the Government, the Court considers

that the first of those rules applies in the instant case; Mr Phocas

did not complain of a deprivation of his property within the meaning

of the second sentence of the first paragraph (P1-1) or of specific

measures restricting the use of it within the meaning of the second

paragraph (P1-1), but of an infringement of his right of property

resulting from the authorities' general conduct.

        2.  Compliance with the rule laid down in the first sentence

            of the first paragraph (P1-1)

53.     For the purposes of the first sentence of the first paragraph

(P1-1), the Court must determine whether a fair balance was struck

between the demands of the general interest of the community and the

requirements of the protection of the individual's fundamental rights

(see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982,

Series A no. 52, p. 26, para. 69).

            (a)  The general interest

54.     The interference in issue was designed to enable an urban

development scheme to be carried out.  The applicant noted that it had

taken twenty-seven years for the project to materialise, and he

consequently questioned the genuineness of its public interest.

55.     Like the Government and the Commission, the Court reiterates

that the Contracting States enjoy a wide margin of appreciation in

order to implement their town-planning policy (see the Sporrong and

Lönnroth judgment previously cited, p. 26, para. 69).  The Court

regards it as established that the interference answered the needs of

the general interest.

            (b)  Striking a fair balance between the opposing interests

56.     The applicant alleged that for twenty years he had suffered

disproportionate restrictions on the enjoyment of his right of

property.  It was the threat of expropriation that had caused him to

transfer his business to other premises in 1962; he could not

reasonably have let his property to a trader as it was, since in the

event of expropriation, he would have had to compensate him for the

loss of the business and for non-renewal of the lease; furthermore, he

had been prevented from converting the building.  He had, he continued,

tried to have it purchased by the authorities under his right of

abandonment, but he had not been able to do otherwise than refuse the

price, which he said had been derisory, that the authorities had

offered him - FRF 142,500, whereas ten years later, the Expropriations

Division of the Court of Appeal of Hérault set his expropriation

compensation at FRF 394,440.

        Mr Phocas further alleged that the authorities' aim in not

allowing his various applications for planning permission had been

purely speculative.  In the event of expropriation, the compensation

paid to the owner would be determined according to the value of the

property concerned on the day it was expropriated.  If he had been able

to convert his property as he wished, the cost of the operation would

therefore have been greater.  Furthermore, the expropriation

proceedings had begun on 7 March 1980 because of the Montpellier

Administrative Court's judgment of 7 February 1980, in which that court

had held that the applicant had constructive planning permission.

57.     The Government acknowledged that urban development schemes were

a matter of long-term planning and that that could lay major burdens

on certain landowners.  The owner of land reserved in a development

plan for an amenity in the public interest, such as Mr Phocas,

nevertheless had the possibility of remedying such a situation.

Article 28 of the Decree of 31 December 1958 had provided for a

so-called abandonment procedure allowing the landowner to have the land

in question purchased by the benefiting local authority within three

years.  Failing an agreement, the price could be set by the

expropriations judge.

        In the instant case, the Government continued, the applicant

had lodged his application to abandon his property with the authorities

on 24 May 1970, and the failure of the price negotiations had been

acknowledged at the end of the interview on 26 January 1973.  The

expropriations judge, to whom the applicant had applied only on

20 October 1975, after the three-year period had expired, had therefore

been bound to hold that he had no jurisdiction to fix the purchase

price.  In short, Mr Phocas had been responsible for the failure of

that procedure, which afforded him the chance of putting an end to the

burden on his right of property.

        The weight of that burden had, moreover, to be put in

perspective.  Mr Phocas's rights as an owner had for the most part been

preserved; he could make use of his building - and, in particular,

continue to use it for business purposes - or let it as it was.

Furthermore, if it had proved difficult to sell the building because

of the restriction affecting it, the possibility of having it purchased

by the authorities had been open to him.

        In sum, the balance between the community's interests and those

of Mr Phocas had not been upset.

58.     The Commission observed that for a long period before 3 May

1974, when France ratified Protocol No. 1 (P1), the applicant had not

managed either to secure planning permission or to sell his property

to the authorities pursuant to his right of abandonment.  That

situation had continued after that date.  Thus on 21 September 1976 the

Prefect had adjourned his fresh application for planning permission,

although the expropriations judge in his decision of 19 March 1976 had

found that Mr Phocas was "again able to dispose of [his land] freely"

(see paragraph 26 above).  Moreover, the applicant had been prevented

by the commencement of expropriation proceedings on 7 March 1980 from

benefiting from the Montpellier Administrative Court's judgment of

7 February 1980, in which he had been held to have constructive

planning permission.

        Having regard also to the slowness of the proceedings relating

to the applicant's property, the Commission concluded that the acts of

the French authorities and courts had made Mr Phocas's right of

property so unstable and uncertain over a very long period that a fair

balance had not been struck between the public interest and the private

interest.

59.     The Court notes that there were various interferences with

Mr Phocas's full enjoyment of his property as a result of different

kinds of proceedings.  The threat of expropriation and the restrictions

on building were undoubtedly an obstacle to continuing to run his

business on the premises and made it doubtful that he could sell them

or let them to a trader.  Nor was the applicant able to convert his

building as he wished, since three of his applications for planning

permission were adjourned and one refused (see paragraphs 8-15 above).

60.     Such a situation is in principle incompatible with the fair

balance required by Article 1 of Protocol No. 1 (P1-1) (see

paragraph 53 above).

        The Court observes, however, that the law applicable at the

material time, namely Article 28 of the Decree of 31 December 1958 (see

paragraph 36 above), afforded the applicant a remedy.  That provision

allowed the owner of land reserved in an approved development plan,

such as Mr Phocas, to have the land in question purchased by the local

authority or public institution for whose benefit the land had been

reserved within three years of the application; failing agreement, an

application could be made to the expropriations judge to determine the

price.

        In the instant case the general development plan of the

municipality of Castelnau-le-Lez was approved on 9 October 1969 (see

paragraph 11 above).  It was not until 27 May 1970, however, that

Mr Phocas applied to the département's Director of Infrastructure to

abandon his property (see paragraph 18 above), after the Ministry of

Infrastructure and Housing had suggested this course of action on

2 January 1970 (see paragraph 12 above).  Furthermore, having had no

response from the authorities, the applicant, instead of applying to

the expropriations judge, renewed his application on 13 May 1972 (see

paragraph 18 above).  The negotiations which followed failed (see

paragraph 19 above).  Instead of immediately applying to the

expropriations judge, the applicant again renewed his application, on

2 June 1973 (see paragraph 20 above).  When the applicant did finally

apply to the judge on 20 October 1975, the judge could not but hold

that he had no jurisdiction because the statutory three-year time-limit

had been exceeded (see paragraph 26 above).

        It thus appears that even if the authorities delayed in

replying to Mr Phocas's applications to have his property purchased,

the failure of the abandonment proceedings was attributable to the

applicant, who first rejected the purchase offer made to him (see

paragraphs 21-25 above) and then applied to the expropriations judge

out of time (see paragraph 26 above).  At all events, the applicant

finally accepted the expropriation compensation awarded by the

Expropriations Division on 22 January 1982 (see paragraph 28 above).

The procedures provided in domestic law therefore afforded a remedy

sufficient to ensure protection of the right to the peaceful enjoyment

of one's possessions.

        In short, there has not been a breach of Article 1 of

Protocol No. 1 (P1-1).

II.     ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

        CONVENTION

61.     Mr Phocas also complained of the length of the proceedings

brought in the French courts.  He relied on Article 6 para. 1

(art. 6-1) of the Convention, which provides:

        "In the determination of his civil rights and obligations ...,

        everyone is entitled to a ... hearing within a reasonable time

        by [a] ... tribunal ..."

62.     As it had already done before the Commission, the Government

raised an objection to admissibility.

A.      The Government's preliminary objection

63.     The Government pleaded that the complaint based on Article 6

para. 1 (art. 6-1) was out of time as the applicant had made it for the

first time in his supplementary pleading of 30 December 1992, after the

six-month period laid down in Article 26 (art. 26) of the Convention

had expired.

64.     Mr Phocas rejected that submission, contending that he had

raised the complaint in substance in his application to the Commission.

65.     The Delegate of the Commission pointed out that it was for the

Commission to characterise the facts submitted to it and that it had

declared the complaint in question admissible after observing that the

applicant had complained of the length of the proceedings in the French

courts.

66.     The Court notes that in his application Mr Phocas raised the

slowness of the proceedings in the national courts and thus, in

substance, relied on Article 6 para. 1 (art. 6-1).  Having regard also

to the Commission's decision on admissibility, it dismisses the

objection.

B.      Merits of the complaint

67.     The Government did not plead on the merits of this complaint

and the Commission expressed no view (see paragraph 40 above).

68.     The Court points out, firstly, that the applicant provided no

particulars in support of his complaint.  It notes further that he

initiated various distinct sets of proceedings, which must be assessed

separately.

        The proceedings in connection with the application for judicial

review made to the Montpellier Administrative Court on 2 December 1967

do not fall under the Court's scrutiny as they were terminated on

16 October 1972 (see paragraph 9 above), that is to say before

3 May 1974, when France ratified the Convention.  The same is true of

the second set of proceedings to obtain compensation (see

paragraphs 32-34 above); these were instituted on 12 December 1990,

after the application to the Commission on 19 November 1990.

69.     While the length of the preliminary, amicable stage of the

proceedings to abandon property is open to criticism, it was mainly

attributable to the conduct of the applicant (see paragraph 60 above).

The proceedings before the expropriations judge and the Expropriations

Division, on the other hand, took place speedily.  The expropriations

judge of Hérault, to whom application was made on 20 October 1975 to

have the purchase price fixed, ruled on 19 March 1976 (see

paragraph 26 above).  Similarly, on the application made on

15 December 1980 to have the expropriation compensation assessed, the

same judge gave judgment on 19 June 1981.  On appeal, the

Expropriations Division gave its ruling on 22 January 1982 (see

paragraph 28 above).

70.     It remains to consider the length of the proceedings brought

in the Montpellier Administrative Court on 15 November 1976 (see

paragraph 14 above) and 9 February 1979 (see paragraphs 16 and 17

above) and those relating to Mr Phocas's first application for

compensation (see paragraphs 29-31 above).

71.     The reasonableness of the length of proceedings must be

assessed in the light of the particular circumstances of the case and

having regard to the criteria laid down in the Court's case-law, in

particular the complexity of the case and the conduct of the applicant

and of the relevant authorities (see, for example, the Terranova v.

Italy judgment of 4 December 1995, Series A no. 337-B, p. 21, para. 20)

and the importance of what is at stake for the applicant in the

litigation (see, among other authorities, the Allenet de Ribemont v.

France judgment of 10 February 1995, Series A no. 308, p. 19, para.

47).

72.     As regards the length of the first of the three sets of

proceedings mentioned above (about two years and two months), the Court

notes that it went through its various stages at a regular pace.  The

application was lodged on 15 November 1976, the Minister of

Infrastructure filed his observations on 16 June 1977 and documents on

29 June 1977, the hearing took place on 15 December 1978 and judgment

was delivered on 8 January 1979.

        The second set of proceedings lasted a little over four years

and three months.  Mr Phocas sought to have quashed the decision

whereby the mayor of Castelnau-le-Lez had refused his last application

for planning permission.  Only one year elapsed between the lodging of

the application with the Montpellier Administrative Court (9 February

1979) and the delivery of the judgment (7 February 1980).  The Conseil

d'Etat did not proceed so rapidly.  Having received the appeal on

14 April 1980, it did not hold a hearing until 21 January 1983 and

delivered its judgment only on 19 May 1983.  The case, however, had

become pointless for the applicant after 7 March 1980, when the

expropriation proceedings were commenced (see paragraphs 27 and 28

above), making any building work impossible.

        The third set of proceedings lasted eight years and nearly five

months, between the filing of the preliminary compensation claim

(8 January 1982) and the judgment of the Conseil d'Etat (25 May 1990).

The Court observes, however, that those proceedings were to some degree

complex as they raised the issue of the State's liability.  It also

notes that the main delay was to be ascribed to the applicant, who did

not reply to the observations filed with the Administrative Court by

the Minister of Town Planning and Housing on 10 October 1983 until 20

and 22 November 1984, when the hearing was to take place on

23 November.  On 27 November the court consequently ordered further

inquiries into the facts so as to allow the authorities to reply.

Several pleadings were subsequently exchanged, with the result that

judgment was not given until 3 June 1986.  The Conseil d'Etat, to which

Mr Phocas applied on 11 August 1986, subsequently filing a

supplementary pleading on 10 December of the same year, admittedly did

not deliver its judgment until 25 May 1990.  It does not appear from

the evidence, however, that Mr Phocas made any special effort to speed

up the proceedings.

73.     In conclusion, there has been no breach of Article 6 para. 1

(art. 6-1) of the Convention.

FOR THESE REASONS, THE COURT

1.      Holds by seven votes to two that there has been no breach of

        Article 1 of Protocol No. 1 (P1-1);

2.      Dismisses unanimously the Government's preliminary objection

        that the complaint based on Article 6 para. 1 (art. 6-1) of the

        Convention was out of time;

3.      Holds unanimously that there has been no breach of Article 6

        para. 1 (art. 6-1) of the Convention in respect of the

        application for judicial review lodged on 15 November 1976;

4.      Holds by seven votes to two that there has been no breach of

        Article 6 para. 1 (art. 6-1) of the Convention in respect of

        the application for judicial review lodged on 9 February 1979;

5.      Holds by five votes to four that there has been no breach of

        Article 6 para. 1 (art. 6-1) of the Convention in respect of

        the compensation proceedings instituted on 8 January 1982.

        Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 23 April 1996.

Signed: Rolv RYSSDAL

        President

Signed: Herbert PETZOLD

        Registrar

        In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the following

separate opinions are annexed to this judgment:

        (a) joint dissenting opinion of Mr Russo and Mrs Palm, joined

            in part by Mr Bigi;

        (b) joint dissenting opinion of Mr Foighel and Mrs Palm.

Initialled: R. R.

Initialled: H. P.

          JOINT DISSENTING OPINION OF JUDGES RUSSO AND PALM,

            JOINED IN RESPECT OF PARAGRAPH 3 BY JUDGE BIGI

                             (Translation)

        Unlike the majority, we voted in favour of finding that there

had been a breach of Article 6 para. 1 (art. 6-1) of the Convention as

regards the proceedings instituted by the applicant on 9 February 1979

and 8 January 1982.

        In the first set of proceedings Mr Phocas sought to have

quashed the decision whereby the mayor of Castelnau-le-Lez had refused

his last application for planning permission.  The fact that the case

had become pointless for the applicant owing to the commencement of

expropriation proceedings cannot, in our view, justify on its own a

duration of four years and three months, including three years and one

month before the Conseil d'Etat alone.

        The second set of proceedings was undeniably complex to some

degree as it raised the issue of the State's liability, and the main

delay was no doubt to be ascribed to the applicant.  Nevertheless, the

Conseil d'Etat, to which Mr Phocas applied on 11 August 1986, did not

deliver its judgment until 25 May 1990.  And while, as the Court notes,

"it does not appear from the evidence ... that Mr Phocas made any

special effort to speed up the proceedings", the same evidence does not

disclose any justification for that delay of nearly four years.

          JOINT DISSENTING OPINION OF JUDGES FOIGHEL AND PALM

1.      In relation to Article 1 of Protocol No. 1 (P1-1), we agree

with the majority that there were various interferences with Mr

Phocas's full enjoyment of his property as a result of different kinds

of proceedings (paragraph 59).

        Like the Commission, we also find that the acts of the French

authorities and courts had made Mr Phocas's right of property unstable

and uncertain over a very long period.

        Such a situation is in principle incompatible with Article 1

of Protocol No. 1 (P1-1).

2.      It is true that domestic law afforded a remedy - the

abandonment procedure (paragraph 36) - which in principle could to some

extent ensure protection of possessions.  But we disagree with our

colleagues that the failure of the domestic abandonment proceedings was

attributable to the applicant alone.

        Mr Phocas's first request to abandon his property was made on

27 May 1970 (paragraph 18).  But it was not until he renewed his

application on 13 May 1972 that the authorities reacted by inviting him

to a meeting said to have taken place on 26 January 1973

(paragraph 19).

        A further meeting took place on 29 May 1973 at the office of

the Prefect of Hérault.  What happened at this meeting is not clear,

but it seems to follow from Mr Phocas's letter of 2 June 1973 to the

Prefect that negotiations were still going on and that the Prefect

during the last meeting had made "a promise ... that the formalities

for purchasing [the applicant's] property ... would be carried out very

speedily" (paragraph 20).

        Moreover, on 7 November 1974, the département's Director of

Infrastructure wrote to the applicant making an offer to purchase

(paragraph 21).  Mr Phocas replied on 20 January 1975, asking for "a

proper assessment" (paragraph 22).  On 4 February 1975 the Director of

Infrastructure sent him a letter - confirmed on 16 May 1975 - stating

notably that he had "no discretion to alter offers" and that it was for

the applicant to apply to the expropriations judge to fix the

compensation due to him (paragraph 23).

        This conduct on the part of the authorities could reasonably

lead the applicant to believe that negotiations were continuing and

that a solution was imminent.  The failure of the domestic abandonment

proceedings was therefore not attributable to the applicant alone.

3.      Whatever the case may be, it took a further year and five

months after Mr Phocas's letter of 2 June 1973 for an offer of payment

to be made on 7 November 1974 (paragraph 21).

        It was thus four and a half years before Mr Phocas received a

concrete reply to his request of 27 May 1970.  This delay put him in

an awkward and unreasonable situation: either he had to accept this

offer or else he had to give up the abandonment as the three-year

time-limit had passed while he was waiting for the authorities to

answer his request.

        Against this background and taking the case as a whole, we

cannot accept that a fair balance was struck in relation to Mr Phocas.

We therefore hold that there has been a breach of Article 1 of

Protocol No. 1 (P1-1).

4.      We further find that Article 6 para. 1 (art. 6-1) of the

Convention has been violated since the proceedings instituted on

8 January 1982 were not conducted within a reasonable time.

 

Full & Egal Universal Law Academy