AS TO THE ADMISSIBILITY OF
Application No. 28981/95
by Anthony and Elizabeth CHILD
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 February 1995
by Anthony and Elizabeth CHILD against Ireland and registered on
26 October 1995 under file No. 28981/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Irish nationals. They were born in 1929 and
are currently resident in London. The facts of the case, as submitted
by the applicants, may be summarised as follows.
In 1976 the applicants bought a 25 acre site in County Wicklow
and on 13 October 1986 they applied to the relevant County Council for
planning permission to build a house on the site. Further to
representations from the applicants, five members of the County Council
tabled a motion that a resolution be passed by the County Council
directing the County Manager to grant planning permission.
At a meeting of the County Council on 10 November 1986 the County
Manager recommended refusal of planning permission due to the site's
location in an elevated position in an area adjoining a main tourist
route designated by the County Plan as an area of high amenity, because
the entrance to the house would constitute a traffic hazard and
endanger public safety and due to the serious danger of septic tank
effluent gaining access to a nearby reservoir which was a major source
of public water supply. A decision was deferred pending an on-site
meeting between the relevant five members of the County Council who
supported the motion, the County Manager and the County Engineer. After
that meeting further information was requested from the applicants by
letter dated 27 November 1986 in relation to sewage disposal and this
information was submitted on 12 December 1986. The applicants were also
required to sink a trial hole on the site and, having inspected this
hole (with a view to assessing percolation on the site), the County
Medical Officer reported that development on the site would create a
serious danger of septic tank effluent entering the nearby river which
led into a reservoir.
At the County Council meeting on 12 January 1987, the County
Engineer also spoke against granting planning permission due to
insufficient percolation and proximity to the river feeding the
reservoir. The County Manager stated that three separate reports
indicated that the application should be refused and that he would be
acting irresponsibly if he made an order granting planning permission.
The Director of Community Care and Dublin Corporation were also against
granting planning permission and these opinions were also outlined to
the meeting. The County Council members had the reports of the County
Engineer and the County Medical Officer before them. However, the
County Council members resolved, by 10 votes to 7, to direct the County
Manager to grant planning permission.
Having taken legal advice, the County Manager in a letter dated
29 January 1987 notified the County Council members of his refusal to
give effect to their resolution. He referred to the technical reports
and advice all of which were against granting planning permission and
to the fact that no competent technical advice offering an alternative
view was brought before him. He again pointed out that he would be
acting irresponsibly if he allowed planning permission. The applicants
did not appeal the decision of the County Manager to An Bord Pleanála,
the Irish planning appeals board and they claim that they did not
receive the registered letters notifying them of the decision of the
County Manager.
The applicants then engaged their own expert engineer whose
report dated 25 May 1987 stated that the site was suitable for septic
tank effluent. Correspondence between the applicants' engineer and the
County Council ensued in an effort on the applicants' part to obtain
planning permission but this correspondence ceased in or around the end
of 1989 without any change in the planning position.
The applicants then commenced building a house on the site and
they informed the County Manager by letter dated 17 May 1990 that they
had started building. The County Manager replied confirming that such
building was unauthorised in light of his previous decision. Since the
building continued, proceedings were issued in 1990 by the County
Council as a result of which the applicants were obliged to stop
construction. The applicants' application for an order from the County
Council to retain the building, which building had been already largely
completed, was refused on 27 August 1991. The applicants' appeal to An
Bord Pleanála against the refusal of the retention order was rejected
on 25 March 1992. The reasons given for the refusal of the appeal were
the scenic nature of the area, the proximity of the septic tank
percolation area from the river (which river fed into an important
reservoir for the area) and the traffic hazard which would be caused
by an entrance from a residence with limited visibility onto a narrow
road.
On 19 February 1993 the applicants issued judicial review
proceedings in the High Court claiming that the County Manager's
decision to refuse planning permission was invalid as he failed to
implement the County Council members' resolution. In May 1994 the
County Manager offered to settle the matter, inter alia, by granting
planning permission but the applicants would be responsible for their
own legal costs to date. The applicants refused the offer.
While the applicants were legally represented from at least late
1989 until April 1993 (including for the drafting of the Statement of
Claim in the judicial review proceedings), they represented themselves
during the hearing before the High Court. The High Court gave its
judgment on 20 January 1995. The court rejected the applicants' claim
that they had not received any registered notices of the County
Manager's decision of 29 January 1987. The court went on to state that,
according to the jurisprudence, the County Manager was entitled to
ignore an invalid resolution of the members of the County Council
without applying to court to have the relevant resolution quashed.
Accordingly, the question to be decided was the validity of the
members' resolution of 12 January 1987. The High Court noted that,
while County Council members are not bound by the advices of the County
Engineer and Medical Officer, they must have some clear basis for not
following such persons' advice by way of, for example, an expert's
opinion supporting their position.
The High Court found that the members had acted ultra vires and
that the resolution of the County Council was invalid because the
County Council members did not have any such clear basis for ignoring
the advice against granting planning permission given by, inter alia,
the County Council's technical experts and because they did not take
into account the proper planning and development of the site. In
addition, the court found that the members had also not taken the four
previous refusals of planning permission for the same site into account
(two of which refusals had been upheld on appeal by An Bord Pleanála
and all of which refusals would have been a matter of public record).
The County Manager's decision was accordingly upheld. The High Court
granted the Council an injunction restraining further building but
allowing the applicants to complete the roof of the house. On
20 February 1995 the applicants lodged an appeal against the High Court
decision to the Supreme Court which appeal does not yet appear to have
been heard.
COMPLAINTS
The applicants complain about the refusal of planning permission,
about the actions and motivations of the County Manager and about the
High Court judge whom they claim did not take any notice of their
evidence and submissions. They invoke Article 8 of the Convention.
THE LAW
The applicants complain about the refusal of planning permission.
They submit that the County Manager had no power to overrule the
decision of the members of the County Council, that, in refusing the
application for planning permission, the County Manager was motivated
by hostility towards the applicants and that he would not therefore
appear in court to answer the allegations against him. They also submit
that the High Court judge did not take any notice of their evidence
during the High Court hearing.
Although the applicants did not appeal the County Manager's
decision of 29 January 1987 to An Bord Pleanála and that their appeal
to the Supreme Court has not yet terminated, the Commission does not
find it necessary to consider whether the applicants have exhausted
domestic remedies as required by Article 26 (Art. 26) of the
Convention, because the application is, in any event, inadmissible for
the reasons set out below. Though the applicants invoke Article 8
(Art. 8) of the Convention, the Commission is of the opinion that the
applicants' complaints (apart from the complaint in relation to the
High Court judge) are more appropriately considered under Article 1 of
Protocol No. 1 (P1-1) and more specifically under the second paragraph
of that Article. Article 1 of Protocol No. 1 (P1-1), insofar as
relevant, reads 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 ... .
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 ... ".
The Commission recalls that a prohibition on building a house on
a plot which one owns constitutes a control of the use of property
within the meaning of the second paragraph of Article 1 of Protocol 1
(P1-1) and that in order for such control to be justified it must be
lawful, it must pursue a legitimate aim in the public interest and the
means employed must be proportionate to the aim pursued (see, for
example, No. 10911/84, Dec. 7.7.86, D.R. 48 p. 191).
The Commission considers that the refusal of planning permission
by the County Manger amounted to a control of the use of the
applicants' property within the meaning of Article 1 of Protocol 1
(P1-1). As to the lawfulness of the County Manager's refusal of
planning permission, the Commission notes the applicants' claim that
the County Manager was not entitled to take the action he did. However,
the Commission also notes that the purpose of the judicial review
proceedings before the High Court was precisely to challenge the
validity of the County Manager's action. The High Court clearly
indicated that there was a basis in law for the County Manager's
refusal to comply with the resolution of the members of the County
Council, that the decision of the members was invalid and that the
action of the County Manager was, accordingly, valid.
As to the legitimacy of the aim of the refusal, the applicants
submit that the reason for the County Manager's refusal was hostility
against them. However, the Commission notes the expert technical
advice, opinions and reports from the County Engineer, the County
Medical Officer, Dublin Corporation and from the Director of Community
Care against granting planning permission. Though the rejection by An
Bord Pleanála of the appeal against the refusal of a retention order
took place after the County Manager's decision on 29 January 1987, the
Commission notes that the reasons for that board's decision mirrored
the objections of the County Manager which he outlined to the County
Council meeting on 10 November 1986.
The Commission also recalls that four previous applications made
by others for planning permission for the same site had been refused
before the applicants bought the site and that appeals against two of
those refusals were also rejected by An Bord Pleanála. While it is
noted that the County Manager appears to have offered to settle the
matter by granting planning permission in May 1994, the Commission does
not consider this indicative of bad faith on the part of the County
Manager - the County Manager would still have been in a position to
attach specific construction conditions to that offer and, in any
event, it is appreciated that the County Manager was faced with a
situation which had been ongoing for almost eight years, with the
existence of a house on a site which had been practically completed and
with a further set of expensive legal proceedings ahead.
Accordingly, the Commission considers that aims of the control
were the maintenance of a scenic environment, public health
(percolation of effluent into a reservoir) and public safety (traffic
hazards) and that those aims are legitimate within the meaning of
Article 1 of Protocol 1 (P1-1). Insofar as the applicants argue that
the County Manager's refusal to "come to court" demonstrates his
alleged hostility and reluctance to account for his adopted position
and even assuming that the County Manager was so reluctant, the
Commission notes that the applicants did not apply at any time to the
court, either during the proceedings commenced against them in 1990 or
by them in November 1993, for a witness summons in order to ensure the
County Manager's appearance to give evidence.
As regards the proportionality of the means employed, the
Commission notes that it was only after the refusal of planning
permission by the County Manager that the applicants commenced
construction on the site. Insofar as the applicants submit that they
commenced building because of non-receipt of the registered notices of
the County Manager's decision in January 1989, the rejection by the
High Court of the claim by the applicants of such non-receipt is noted.
The Commission also notes the applicants' engagement of an expert
engineer in 1987 and the purpose of the correspondence between that
engineer and the County Council from 1987 and 1989 none of which would
have been necessary had the applicants been granted planning
permission. Accordingly, the Commission considers that the applicants
were aware of the refusal by the County Manager of planning permission
well in advance of their decision to commence building in May 1990.
Furthermore, since the four previous refusals of planning permission
for the site were a matter of public record, the applicants were in a
position to assess their chances of being granted planning permission
even before they decided to buy the site. In such circumstances, the
Commission considers that the refusal to grant planning permission to
the applicants was proportional to the legitimate aims involved.
Accordingly, the Commission concludes that the refusal of
planning permission to the applicants is justifiable under Article 1
of Protocol 1 (P1-1).
The applicants also complain that the High Court judge did not
listen to their evidence or submissions during the High Court hearing.
While the applicants do not invoke any particular Article of the
Convention in this respect, the Commission has considered this
complaint under Article 6 (Art. 6) of the Convention. However, in light
of the contents of the judgment of the High Court of 20 January 1995,
the Commission does not consider that the applicants have substantiated
this submission, the High Court judge referring as appropriate to the
applicants' positions on the matters at issue.
In such circumstances, the Commission considers that the
applicants' complaints are manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy