AS TO THE ADMISSIBILITY OF
Application No. 11723/85
by Ernest CHATER
against the United Kingdom
The European Commission of Human Rights sitting in private on
7 May 1987, the following members being present:
MM. G. SPERDUTI, Acting President
J.A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
G. TENEKIDES
B. KIERNAN
A. WEITZEL
H.G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. K. ROGGE, Head of Division, acting as
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 4 May 1985
by Ernest CHATER against the United Kingdom and registered on
10 July 1985 under file No. 11723/85;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure of
the Commission;
- the Commission's decision of 14 March 1986 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
19 May 1986 and 2 March 1987;
- the observations submitted by the applicant on 5 August and
13 November 1986;
Having deliberated;
THE FACTS
The facts apparently not in dispute between the parties may be
summarised as follows.
The applicant is a British citizen, born in London in 1938.
He is a haulage contractor by profession and lives in Hoddesdon in
Hertfordshire. He is represented before the Commission by
Ms. M. Carss-Frisk, barrister.
The application arises from a dispute between the applicant
and planning authorities over the interpretation of the facts of this
case for the purposes of planning legislation, as applied to the
applicant's property in Hoddesdon.
In 1960 the applicant, with his wife, bought the house in
which he now lives. His property abuts a road in an established
residential area and forms one of a number of properties dating from
the turn of the century. There are houses adjacent to and opposite
the property. To the rear are allotments. The site comprises about
0.028 hectares on which the principal building is the applicant's
two-bedroomed house. Attached to the house is a building which could
serve as a garage for two small vehicles, and along one boundary is a
single storey outbuilding of some 44 square metres which has been
used partly as an office and mostly as a workshop and store. The open
parts of the site are largely laid out as a hard standing. There is a
single vehicular access, approximately 5 metres wide, to the main
road.
It seems that between 1910 and 1940 the outbuilding was used
by a blacksmith, who also lived in the house. In 1951 a dairy was
transferred to the premises, planning permission having been granted
in 1950 for conversion of an existing engineering workshop to a dairy.
It became more of a milk distribution depot rather than a dairy. On
taking over the property, the applicant and his family lived in the
house. He gave up his previous job as a bus driver and from 1960 to
1972 was self-employed as a lorry driver with his own lorry, which he
kept, repaired and serviced at the site. From 1972 to 1977 he ran a
haulage business with three tractor units and four trailers, which he
kept and repaired on the site. From 1960 until 1977 the applicant
also claims to have repaired vehicles for others on the site at modest
prices and often without invoices. The haulage business declined and
from 1977 the applicant undertook vehicle repairs on a full-time
basis, although keeping a haulage vehicle on the site, obtaining a
specialised haulage licence in 1979 and doing odd haulage jobs, as
well as a weekly grocery delivery until 1980.
In 1971 the applicant applied for and was granted planning
permission to build an extension to the house to provide a double
garage with a bedroom over it. Only the garage was built and it was
subject to the condition that it be used for storing the applicant's
private cars. At that time the applicant's solicitors assured the
planning authorities that no vehicle repairs were being conducted at
the premises. (The applicant claims that this statement was true then
because he was in hospital). However, it seems that the premises were
used for repair work and, in particular, paint spraying. It was this
latter activity, together with the noise and late hours, seven days a
week, aggravated by traffic congestion caused by customers' vehicles
parked in the main road, which led some of the applicants' neighbours
to complain to the local Council, the competent planning authority.
At no point did the applicant have planning permission for
his business activities.
The current Development Plan for the area, including the
applicant's property, designates the area as a Primary Residential
Area and an Environmental Improvement Area. The effect of these
designations is that Council policy is to improve the local amenities
and the overall quality of the environment, and in general not to
grant planning consent for the introduction, extension or
intensification of commercial activities within the curtilage of
residential properties.
In March 1980 the applicant was invited to stop repairing and
maintaining motor vehicles at the property, or to apply for a
certificate of established use for light engineering and vehicle
repair purposes. The applicant applied for such a certificate under
the terms of Section 94(1)(a) of the Town and Country Planning Act
1971 which provides, so far as relevant, as follows:
"94(1) ... a use of land is established if -
(a) it was begun before the beginning of 1964
without planning permission in that behalf and has
continued since the end of 1963 ..."
On 9 September 1980 the Council refused to grant the
certificate as they were not satisfied that the vehicle repair use
had begun before 1964 and had continued ever since. On 14 October
1980 the Council served an enforcement notice on the applicant for him
to cease the vehicle repair and maintenance use within six months because,
in breach of planning controls, he had made a material change in the
use of the property without planning permission. The applicant
appealed against both the enforcement notice and the refusal to grant
an established use certificate. He alleged, inter alia, that the
service of the enforcement notice was ultra vires, there being
other alternatives open to the Council, and that a distinction could
not be made between the established haulage use, including the repair
of his own haulage vehicles, and the repair of other people's
vehicles.
A public inquiry was held on 14 April 1981. In his report to
the Secretary of State for the Environment, the Inspector appointed to
conduct the inquiry concluded that a material change of use of the
applicant's property had occurred in 1960 without planning permission
when the applicant had begun his haulage business. The applicant
could not be said to have established a vehicle repair use in its own
right before 1964, the car repair work being minimal compared with
that generated by the haulage business, with its ancillary use of
repairing the haulage vehicles. A further material change of use
occurred at the property in 1977 when the applicant ceased hauling and
began vehicle repairs full-time. This change was in breach of
planning control. Thus the Council's enforcement notice and the
refusal to grant an established use certificate were deemed
well-founded.
On the planning merits, the Inspector was of the opinion that
a vehicle repair business must significantly detract from the
amenities of the neighbouring properties and the general residential
environment, and was not a use for which planning permission should be
granted. On 23 April 1982 the Secretary of State informed the
applicant of his decision, upholding the Inspector's conclusions.
In 1984 the applicant was convicted of two breaches of the
1980 enforcement notice in that he was alleged to be still using the
property for repairing and maintaining motor vehicles. He was fined
£125 and ordered to pay compensation. He appealed on the grounds
that the maintenance was part of the haulage business which he had
resumed, and not commercial repair work. The appeal was dismissed,
although the applicant was given an absolute discharge.
On 22 March 1984 a second enforcement notice was issued
requiring the applicant to cease use of the site as a haulage depot
within six months. The applicant appealed to the Secretary of State.
He claimed that the use had been continuous since 1963. The power to
determine this appeal was transferred to an Inspector appointed to hold
a public inquiry. The inquiry was held on 25 October 1984.
The Inspector upheld the findings of the previous planning
inquiry that there had been a material change of use of the property
in 1960 when the haulage business was started without planning
permission. This use was unlawful. In 1977 a further unlawful
material change in use of the property occurred with the creation of a
full-time vehicle repair business. When enforcement action required
the cessation of the latter use, the applicant could not revert to the
haulage business which, being unlawful, required planning permission.
The reversion to this use was, therefore, in breach of planning
control.
The Inspector did not accept the applicant's contention that
during the period 1977 to 1982 his premises were used for three
separate purposes: as a dwelling, a motor repair and maintenance
business and a haulage depot. He noted that between 1980 and 1982 the
applicant had had a 10 cwt. van which was occasionally used for
haulage and that the applicant had wished to resume haulage
contracting. However, he found no evidence that a significant
proportion of the applicant's premises had actually been used as a
haulage depot during that period and concluded that this previously
established use had been abandoned between 1980 and 1982, if not also
throughout the period 1977 to 1982. Hence the applicant could not
claim to have used the site as a haulage depot without interruption
since 1960. The Inspector found that the need to protect the
residential amenities outweighed the personal and economic
considerations relating to the applicant and his customers. He
therefore dismissed the applicant's appeal and refused planning
permission for a haulage depot. His decision was notified to the
applicant by letter dated 25 January 1985.
COMPLAINTS
The applicant complains that he has been deprived of his
livelihood by the interaction of the two enforcement notices, which
prevent him using his premises as either a haulage depot or as a
vehicle repair and maintenance business. He states that he has been
deprived of his yard and workshop because he is now obliged to use
them for residential purposes for which they are utterly unsuitable.
He also states that he has been deprived of his business which
consisted of mixed user and which continued, albeit in varying
proportions of user, from before 1964 until it was prohibited in 1985.
He invokes Article 1 of Protocol No. 1, claiming that while a
small industrial site in the middle of a residential area may not be
ideal, he should have been entitled to some form of compensation.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 May 1985 and registered on
10 July 1985.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the application on 14 March 1986 and decided
to give notice of it to the respondent Government, pursuant to Rule
42, para. 2(b) of its Rules of Procedure. The Government was also
invited to submit its written observations on the admissibility and
merits of the application and, in particular, on the issues which it
raises concerning the control and deprivation of property in the
general or public interest, within the meaning of Article 1 of
Protocol No. 1.
The Government's observations were submitted on 19 May 1986,
to which the applicant replied summarily on 5 August 1986 in person,
and fully on 13 November 1986 through his legal representatives, after
two extensions of the time limit for the submission of these latter
observations had been granted by the President of the Commission. The
applicant was granted legal aid by the Commission on 18 July 1986.
On 2 March 1987 the Government submitted further observations
on the admissibility and merits of the application on their own
initiative.
SUBMISSIONS OF THE PARTIES
The Government
Part I: Facts
The Government's description of the facts has been largely
incorporated in THE FACTS above.
As regards the Secretary of State's decision of 23 April 1982,
the Government submits that, on its true construction, this decision
was based not on the view that there had been a material change of use
of the site by reason of an increase in the vehicle repair use leading
to a loss of ancillary status, but rather that the vehicle repair use
amounted to the introduction onto the site of a new primary use which,
as a matter of fact and degree, constituted a material change of use.
Part II: Domestic law and practice
Local planning authority
------------------------
The competent authority for the planning decisions in this
case is the applicant's local Council (cf. Section 1 of the Town and
Country Planning Act 1971 ("the 1971 Act"), as amended by the Local
Government Act 1972.)
Planning control
----------------
Planning permission has been necessary since 1948 for any
development of land, and development includes any material change in
the use of property (cf. Sections 22 and 23 of Part III of the Town
and Country Planning Act 1947, re-enacted in Part III of the Town and
Country Planning Act 1962, and Section 23(1) of the 1971 Act).
Material change of use
----------------------
Whether a material change of use amounting to development has
occurred is primarily a matter of fact and degree in each case. The
case-law has developed to permit the ancillary use of property. An
ancillary activity is one ordinarily regarded as incidental to a
primary use. It is not a separate use. However such ancillary
status may be lost where the activity is conducted on such a scale as
to constitute a separate primary use in its own right. In
consequence, land may acquire a new primary use or a "composite" or
"mixed" use, for which planning permission will be required.
Lawful and unlawful use of land
--------------------------------
Since 1948, in general, a use is lawful if it has, and is
conducted in accordance with, planning permission, either express or
implied. Without such permission the use is unlawful, but may be
established (i.e. immune from enforcement action, see below, p. 8).
If after enforcement action a previous use of land is resumed,
planning permission is not required if that previous use is itself
lawful and immediately preceded the activity against which enforcement
proceedings were taken.
Normal applications for planning permission
-------------------------------------------
Applications for planning permission are made to local
planning authorities who, having regard to their Development Plans and
any other material considerations, may grant planning permission
either conditionally or unconditionally, or refuse it. Appeals
against refusal lie to the Secretary of State for the Environment and
then to the courts if the Secretary of State's decision is ultra
vires or has not complied with the relevant requirements.
Enforcement of planning control: Enforcement notices
-----------------------------------------------------
The enforcement of planning control is the responsibility of
local planning authorities. They may issue enforcement notices,
pursuant to Section 87 of the 1971 Act, in order to remedy breaches of
planning control. The considerable discretion of local planning
authorities to issue enforcement notices in respect of allegedly
unlawful development may be challenged in the courts where it can be
shown to have been exercised arbitrarily or capriciously. Enforcement
action may not be taken against a breach of planning control
consisting of a material change of use which occurred before the end
of 1963.
Appeals against enforcement notices
-----------------------------------
Appeals against enforcement notices lie to the Secretary of
State for the Environment (Section 88 of the 1971 Act). Such appeals
are also deemed to be applications for planning permission for the
development in question. The Secretary of State has power to grant
planning permission. Appeals under Section 88 of the 1971 Act are
governed by the Town and Country Planning (Enforcement Notices and
Appeals) Regulations 1981. The parties have several procedural rights
including a right to be heard, by way of public inquiry, if wished
(Section 282 of the 1971 Act and Section 250 of the Local Government
Act 1972). The procedure at a public local inquiry is governed by
the Town and Country Planning (Enforcement) (Inquiries Procedure)
Rules 1981. The Secretary of State appoints Inspectors to hear such
inquiries. In general it is the Inspector himself who determines the
appeal (Schedule 9 of the 1971 Act and the Town and Country Planning
(Determination of appeals by appointed persons) (Prescribed Classes)
Regulations 1981). Where the Secretary of State directs that he
himself will decide an appeal, the Inspector reports to him, setting
out his findings of fact, his conclusions and his recommendations.
The Secretary of State and the Inspector must take into account local
Development Plans and any other material considerations. These may
include the personal circumstances of the person in breach of planning
control.
The burden of proof (based on the balance of probabilities) in
enforcement notice appeals is on the appellant to establish that
there has been no breach of planning control.
Non-compliance with enforcement notices
---------------------------------------
Failure to comply with an enforcement notice constitutes a
criminal offence, subject to financial penalties.
Established use
---------------
A material change in the use of land, made without planning
permission before the beginning of 1964 and which has continued since
the end of 1963, is immune from enforcement action, although it
remains unlawful. It is termed an established use and a certificate
may be obtained from the local planning authority to this effect
(Section 94 of the 1971 Act; see above p. 3). The procedure
governing applications for an established use certificate is
prescribed by the Town and Country Planning General Development Order
1977.
The Secretary of State has accepted that a use might subsist
at the date of such an application, even if not active at that time,
provided it had not been abandoned (Appeal Decision 5411/D/78/111).
An established use may be abandoned if the use has ceased with no
intention that it should be resumed. Whether land has ceased to be
used for a purpose, and whether an intention to abandon the use may be
inferred, are questions of fact to be determined according to whether
a reasonable man might conclude that the previous use had been
abandoned in the particular circumstances of the case (Hartley v.
Minister of Housing and Local Government (1970) 1 QB 43). Where an
established use has been abandoned, planning permission would be
required for its lawful resumption. But the legal concept of
abandonment is inapplicable where one use has been followed by another
without interruption; a subsequent reversion to the former use may
constitute a material change of use requiring planning permission
(Young v. Secretary of State for the Environment (1983) 2 AC 662).
These rules apply, mutatis mutandis, where land has more than one
established use.
In deciding whether to grant an established use certificate it
would not be appropriate, in the Government's opinion, to take into
account considerations of personal hardship, as these proceedings are
solely concerned with the certification of facts.
Appeals against refusal of established use certificate
------------------------------------------------------
An appeal against refusal of an established use certificate
lies to the Secretary of State (cf. Section 95 of the 1971 Act, the
Town and Country Planning General Development Order 1977 and the Town
and Country Planning (Enforcement) (Inquiries Procedure) Rules 1981).
Relevance of Development Plan and other planning considerations
---------------------------------------------------------------
Appeals against an enforcement notice or the refusal of an
established use certificate are all deemed to constitute applications
for planning permission. In considering whether to grant planning
permission, the Secretary of State must have regard to the provisions
of the Development Plan and any other material considerations. The
Development Plan outside Greater London consists of a structure plan,
i.e. a broad statement of strategic planning policy for the county,
and local plans containing the implementation details of that policy
for the whole or any part of a district. It is for the Secretary of
State, or his Inspector, to decide the weight to be given to the
various relevant considerations in each case.
Further appeals to the courts
-----------------------------
Appeals lie against the Secretary of State's decisions to the
courts. As regards enforcement notices, decisions may be challenged
before the High Court by reason of illegality, irrationality or
procedural impropriety (cf. The Council for the Civil Service Unions
v. Minister for the Civil Service (1985) AC 374, Sections 88, 243(1)
and 246(1) of the 1971 Act and Order 53 of the Rules of the Supreme
Court).
The validity of a decision of the Secretary of State
concerning an established use certificate may be challenged under
Section 245 of the 1971 Act on the grounds that the decision is not
within the powers conferred by the Act or that there has not been
compliance with relevant requirements.
An appeal on a point of law under Section 246 of the 1971 Act
and an appeal on the grounds that a decision is not within the powers
of that Act, raise substantially the same issues. The High Court may
interfere with a decision if the Secretary of State, or his Inspector,
acted on no evidence; or if he came to the conclusion to which, on the
evidence, he could not reasonably come; or if he has given a wrong
interpretation to the words of the statute; or if he has ignored
relevant matters or has taken into account matters which he should not
have; or if the rules of natural justice have not been observed; or if
a decision is unintelligible or inadequate.
In both cases there is a further right of appeal on a point of
law from the High Court to the Court of Appeal, and, thereafter, with
leave, to the House of Lords.
Compensation
------------
Part VII of the 1971 Act contains provisions for compensation
when planning permission is refused or only granted conditionally.
However Section 147 of that Act expressly excludes compensation for a
refusal of planning permission for any development involving a
material change in the use of land or buildings.
Part III: Admissibility and Merits
Article 26 of the Convention
----------------------------
The Government submits that in respect of the 1980 enforcement
proceedings and the Secretary of State's decision of 23 April 1982,
the application is inadmissible for non-observance of the six months'
rule, these being matters not giving rise to a continuous situation.
Each enforcement notice and each appeal decision involved separate,
self-contained matters, dependent on the facts as determined at the
relevant time.
Moreover, in respect of those first proceedings and the
enforcement proceedings in 1984/1985 the application is inadmissible
for failure to exhaust domestic remedies, the applicant not having
sought to challenge the validity of the decisions in question before
the High Court or challenge the apparent lack of consideration given
by the competent authorities to his contentions about personal
hardship.
Article 1 of Protocol No. 1
---------------------------
The Government submits that the applicant has not been
deprived of his property. The loss of the applicant's business with
its goodwill was an incidental consequence of the enforcement of
planning controls because of the applicant's own unlawful use of his
property, and should not be regarded as a deprivation of possessions.
The "deprivation rule" in Article 1 of Protocol No. 1 concerns
deprivation of ownership rather than restrictions on the use of
property.
The Government contends that the applicant's property was the
subject of controls in accordance with the general interest, within
the meaning of Article 1 of Protocol No. 1. The Commission and
Court's case-law recognises a wide margin of appreciation in the
State's appreciation and implementation of planning policies in the
general or public interest (cf. Eur. Court H.R., Sporrong and Lönnroth
judgment of 23 September 1982, Series A no. 52 para. 69, and James and
Others judgment of 21 February 1986, Series A no. 98 para. 46).
The United Kingdom's Town and Country Planning legislation
provides a careful system of checks and balances between the
individual's wishes and the community's needs, i.e., the rights of the
individual and the general interest. The present case demonstrates
the care taken by the competent authorities in weighing up all the
relevant factors.
The Government also submits that the enforcement action taken
in the present case was justified under the second paragraph of
Article 1 of Protocol No. 1. The Contracting States are the sole
judges of the necessity of promulgating legislation controlling the
use of property, as well as of the necessity of particular
implementation measures. The Convention organs' function is limited
to an examination of the lawfulness and legitimacy of the purpose of
the interference in question, and does not encompass an examination of
its proportionality. Nevertheless, the enforcement measures were
proportionate in the present case.
Since 1948 no one has had the right to use land precisely as
he chooses. The applicant could have verified the planning
possibilities of his property before launching his business even prior
to its purchase (Section 17(1) of the Town and Country Planning Act
1947 and Section 53(1) of the 1971 Act). The applicant may use his
property as a residence or a dairy. The vehicle repair and haulage
uses were at all times unlawful, being without planning permission,
even if the haulage use was immune from enforcement action until 1977
when he changed to the vehicle repair use. In this respect he cannot
be said to have acquired property rights. In failing to ensure
planning permission for his activities, the applicant risked the
consequences which flow from a breach of planning law.
It is no part of the purposes of Article 1 of Protocol No. 1
to protect the peaceful enjoyment of the illegal use of land. The
applicant seeks compensation for losses which are attributable to his
own unlawful acts. It would be wrong in principle for compensation to
be paid when there has in effect been no interference with the rights
protected by Article 1 of Protocol No. 1.
Part IV: Conclusions
The Government requests the Commission to declare the
application inadmissible partly for failure to exhaust domestic
remedies and partly for failure to observe the six months' rule.
Alternatively, it should either be declared inadmissible as being
manifestly ill-founded or the Commission should declare that there has
been no breach of Article 1 of Protocol No. 1.
The applicant
I. Facts
The applicant submits that he did not abandon his haulage
business in 1977, but continued it as far as work was forthcoming.
However, because there was a decline in demand he was obliged to rely
more heavily on the vehicle repair business for income. Since the two
enforcement procedures he has been unable to use his property to earn
his living.
In 1960 when the applicant took over the property there were
no residential properties adjacent to it on either side. The dwelling
houses now abutting the applicant's property were built in the 1970's
pursuant to the local Council's residential development policy.
II. Domestic law and practice
The applicant generally agrees with the Govenment's
description of the domestic law and practice, but emphasises the
following points:
Section 94(1) of the 1971 Act does not distinguish between
primary and ancillary uses. An established use certificate cannot be
issued for an ancillary use.
An established use may acquire immunity from enforcement
action but nevertheless is not deemed to be lawful. Therefore, it
is unlawful to revert to such a use after enforcement action.
In respect of the decision to issue an enforcement notice or
grant planning permission, the applicant contends that the planning
legislation makes no provision for the personal circumstances of, or
consequences for, the land owner to be taken into account as a
material consideration.
Section 147 of the 1971 Act expressly excludes the payment of
compensation for a refusal of planning permission in respect of a
material change of use.
As regards enforcement notices, Section 246 of the 1971 Act
expressly restricts appeals to the High Court to points of law.
Judicial review is limited to allegations of unlawfulness,
irrationality or procedural impropriety.
As regards established use certificates, Section 245 of the
1971 Act restricts High Court applications to allegations of ultra
vires or non-compliance with relevant requirements. It is not
possible to challenge the authorities' findings of fact.
III. Admissiblity and merits
Article 26 of the Convention
----------------------------
As regards exhaustion of domestic remedies the applicant
contends that he could not have complained of the deprivation of his
livelihood to the courts as the failure by the competent authorities
to take this into account would not have been deemed to have been an
error of law or irrational. Moreover, such compensation is expressly
excluded by Section 147 of the 1971 Act.
Thus domestic law in itself and as applied violated the
applicant's rights. The applicant contends that he has complied with
this aspect of Article 26 of the Convention.
As regards the six months' rule, the applicant contends that
his grievance falls within the notion of a "continuing violation"
(De Becker v. Belgium Dec. 9.6.58, Yearbook 2 p. 244). The
combination of the Secretary of State's decision of 23 April 1982 and
the Inspector's decision of 25 January 1985 created a continuing
situation in which he is unable to use his property other than for
residential purposes. Thus the six months' rule has no application in
this case. Alternatively, the relevant decisions, culminating with
the Inspector's decision of 25 January 1985, all form part of a
continuing process. Prior to this latter decision the applicant
considered that he was at least able to conduct a haulage business at
his premises. It was only after the Inspector's decision that the
full implications of the domestic law became apparent to him.
Article 1 of Protocol No. 1
---------------------------
The applicant submits that his right to the peaceful enjoyment
of possessions has been violated without compensation. He complains
of certain features of the domestic law and practice:-
(i) an ancillary use cannot became an established use;
(ii) reversion to an established use is not possible, as such uses
are unlawful;
(iii) the personal consequences for the land owner are not
obligatorily taken into account by the competent authorities.
As in the Sporrong and Lönnroth case the possibilities
concerning the exercise of his ownership rights have been reduced even
if there has not been a total deprivation of property (Eur. Court
H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A
no. 52 para. 60), and James and Others judgment of 21 February 1986,
Series A no. 98 para. 37).
The general structure of Article 1 of Protocol No. 1 requires
a fair balance to be struck "between the demands of the general
interests of the community and the requirements of the protection of
individual rights", so that the individual does not have to bear an
excessive burden (aforementioned Sporrong and Lönnroth judgment
paras. 146 and 173). The applicant contends that by failing to take
account of the personal consequences for the owner, by excluding
compensation and by maintaining the three features emphasised above,
United Kingdom planning law, as applied in his case, failed to strike
that fair balance and obliged him to bear an excessive burden.
The applicant also claims that the measures taken against him
were disproportionate, for conditions could have been attached to the
business use of his property in order to improve neighbourhood
amenities.
IV Conclusions
The applicant requests the Commission to reject the
Government's contentions under Articles 26 and 27 of the Convention,
and to declare his application admissible.
THE LAW
1. The applicant has complained of a deprivation of his property
rights, without compensation, by virtue of the interaction of planning
control decisions regarding his premises. He has invoked Article 1 of
Protocol No. 1 (P1-1) which 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 contribrutions or penalties."
2. The Government has contended that the application should be
rejected partly for non-observance of the six months' rule and partly
for non-exhaustion of domestic remedies, within the meaning of Article
26 (Art. 26) of the Convention. Alternatively, it is contended that
the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. As regards the question of the observance of the six months'
rule, the Commission notes that there were two sets of enforcement
proceedings against the applicant:-
a) from March 1980 until April 1982, when the applicant was
required to cease using his premises for vehicle repair and
maintenance work;
b) from March 1984 until January 1985, when the applicant was
required to cease using his premises for a haulage business.
Although these proceedings could technically be said to be
separate, the Commission considers it necessary to take account of
the first enforcement measures as part of the relevant history of the
applicant's property, and in order to evaluate the consequences of the
second enforcement measures upon the applicant's property rights. The
interaction of these proceedings did have an impact on the applicant's
business activities and, in the particular circumstances of the case,
can be deemed to be part of a continuous action by the competent
planning authorities to ensure the reversion of the applicant's
property to a lawful use. In the light of these considerations, the
Commission does not find that the part of the application concerning
the first enforcement proceedings should be rejected for
non-observance of the six months' rule, pursuant to Article 26
(Art. 26) of the Convention. The final decision in the present
application was that of the Inspector, in his letter of 25 January
1985, when the applicant's appeal against the second enforcement
notice was refused and planning permission for a haulage depot
refused. The applicant lodged his application with the Commission
within six months of that decision.
4. As regards the Government's contention that the application
should be rejected for non-exhaustion of domestic remedies, the
Commission's notes that one of the applicant's main complaints is of a
deprivation of property without compensation. The facts of the
present case concern enforcement action and refusals of planning
permission in relation to the material changes of use of the property
in question made by the applicant. Section 147 of the Town and
Country Planning Act 1971 (the 1971 Act) expressly excludes the
payment of compensation for a refusal of planning permission in
respect of any development involving a material change in the use of
land or buildings. The secondary remedies' dispute between the
parties (cf. pp. 7, 8, 12 and 13 above) concerning the extent to which
an owner may plead his personal circumstances before the competent
planning authorities, and the extent to which those authorities must
take such pleadings into account as a material consideration, is a
question which the Commission considers linked to the substantive
issues raised in the case, and will be dealt with below (see p. 17
point e) below).
In these circumstances, the Commission finds that the
application cannot be rejected for non-exhaustion of domestic remedies
pursuant to Article 26 (Art. 26) of the Convention.
5. Turning to the substantive issues raised by the present
application, the Commission first finds that there has been an
interference with the applicant's peaceful enjoyment of possessions,
within the meaning of Article 1 of Protocol No. 1 (P1-1). In principle the
owner of a house with adjacent premises has the right to use that
property for whatever purpose he sees fit. Limitations on that use
require justification, either in the public interest, if they amount
to a deprivation of possessions, or in the general interest, if they
constitute the control of the use of property.
6. The Commission next finds that the present case does not
disclose any deprivation of the applicant's property, within the
meaning of the second sentence of the first paragraph of Article 1 of
Protocol No. 1 (P1-1). The interference with property rights disclosed by
this application falls solely within the ambit of the second paragraph
of Article 1 of Protocol No. 1 (P1-1), the contested decisions in the case
being taken to enforce planning legislation deemed necessary, by the
competent authorities, "to control the use of property in accordance
with the general interest".
The Commission's task under the second paragraph of Article 1
of Protocol No. 1 (P1-1) is to supervise the lawfulness, purpose and
proportionality of the restrictions in question (see e.g. No. 10378/83
Dec. 7.12.83, D.R. 35 p. 235). The question of proportionality, which
is an inherent aspect of the whole Convention, requires the Commission
to determine whether, whilst recognising the wide margin of
appreciation afforded to States in the planning field, a fair balance
was struck between the general interest of the community and the
protection of the individual's rights (cf. mutatis mutandis
aforementioned Sporrong and Lönnroth judgment para. 69, and Comm.
Report 8.10.83 in the same case para. 105).
With regard to the lawfulness of the enforcement proceedings
and planning restrictions imposed on the applicant's property, the
Commission notes that the applicant does not seriously dispute that
they were lawful and complied with the relevant planning legislation
and domestic case-law, in particular the Town and Country Planning Act
1971. In this context note must be taken of the applicant's complaint
that it is the state of domestic law itself, which provides no
compensation for someone in his position, which violates his property
rights.
As regards the purpose of planning controls, the Commission
acknowledges that they are necessary and desirable in order to
preserve and improve the amenities of residential areas. The
Development Plan, i.e. planning policy, of the applicant's local
planning authority is thus, prima facie, in accordance with the
general interest.
Concerning the proportionality of the measures taken against
the applicant, which required him to cease using his premises for
vehicle repairs or a haulage business, the Commission takes account of
the following factual considerations:-
a) The applicant at no time applied for planning permission to
use his premises for vehicle repair or haulage work. At all times
these uses were unlawful (although for a certain period the haulage
business was immune from enforcement action, i.e., it was an
established use).
b) The applicant apparently never inquired, either prior to the
purchase of his property or afterwards, whether he would require
planning permission for these uses or whether, if so, he would be
likely to be granted it.
c) Thus, although certain of the houses near the applicant were
built after he had purchased the premises in question and some of the
complainants to the local Council arrived in the neighbourhood after
the applicant, he failed to guarantee the lawfulness of his activities
at the outset, at a time when these other legitimate property and
environmental interests had not arisen.
d) The domestic authorities held that the applicant lost the
benefit of the established use of a haulage business between 1980 to
1982, if not from 1977 to 1982, and, therefore, could not revert to
it, as it had throughout been an unlawful use of property. The
applicant did not challenge this finding of fact as being irrational,
arbitrary or grounded on no evidence before the domestic courts.
There is, therefore, no basis in this case for the Commission to doubt
its well-foundedness.
e) The Commission is satisfied that the domestic law permits the
competent planning authorities to take into account, as a material
consideration, the personal circumstances for the owner, as a result
of a possible adverse planning decision.
f) The vehicle repair and maintenance business which the
applicant wished to pursue had obvious detrimental effects on his
neighbours' amenities, with its resultant noise and air pollution, as
well as traffic congestion.
g) Although the applicant's premises have always been used for
business activities, the last use for which planning permission was
granted in 1951 related to a dairy business, a relatively inoffensive
activity compared with a haulage or garage trade. Given the
legitimate policy of the applicant's local planning authority to
improve the amenities of the essentially residential area, the
Commission finds no evidence of arbitrariness in the authority's
refusal to allow the applicant to continue these trades.
Finally, the Commission is of the opinion that, as a general
principle, the protection of property rights ensured by Article 1 of
Protocol No. 1 (P1-1) cannot extend to the granting of compensation for the
cessation of an unlawful use of property.
In the light of the above considerations, the Commission finds
that a proper balance has been struck between the applicant's personal
interests and the general interest. The control of the applicant's
property, which prevents him using his premises for vehicle repairs or
a haulage business, is, therefore, in accordance with the
requirements of Article 1 of Protocol No. 1 (P1-1).
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 1 (27-1) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Head of Division, acting as Secretary Acting President of the Commission
to the Commission
(K. ROGGE) (G. SPERDUTI)