AS TO THE ADMISSIBILITY OF
Application No. 12736/87
by Antonio MAGGIULLI
against the United Kingdom
The European Commission of Human Rights sitting in private on
5 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 August 1986
by Antonio MAGGIULLI against the United Kingdom and registered on
17 February 1987 under file No. 12736/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian citizen born in 1931 and resident
in London. He is represented by Jennifer Home, a barrister practising
in London. The facts as submitted by the applicant may be summarised
as follows.
The applicant was owner of premises at 21 High Road London N15
and let rooms in the property from time to time. He apparently
retained a ground floor room in the house for his own use. By letter
dated 16 May 1983, the London Borough of Haringey ("Haringey")
informed the applicant that the property was below certain minimum
standards and in need of substantial repair and scheduled a list of
necessary works to be done. The applicant replied with certain
proposals as to the work and Haringey replied on 17 August 1983
warning the applicant that resort might be had to powers of compulsory
purchase if progress towards effecting the necessary repairs was
unsatisfactory. Subsequently, on 5 December 1984, Haringey issued a
compulsory purchase order, to which the applicant made formal
objection.
The applicant succeeded in obtaining planning permission to
carry out the necessary improvements and had applied for a grant from
Haringey to finance them. Haringey however informed the applicant that
a grant could not be forthcoming until the three persons occupying the
property had vacated the premises. (The status of these three
occupiers as tenants or licensees was unclear.) The applicant offered
the three occupants alternative accommodation in another of his
properties but they refused to leave. The applicant instituted
proceedings against the three occupiers to obtain vacant possession.
On 10 April 1985 a public local enquiry was held in respect of
the compulsory purchase order. By letter dated 15 April 1985 Haringey
issued an undertaking that if the applicant commenced the works on the
property within six months and completed them within twelve months,
they would not implement the compulsory purchase order, if confirmed.
The undertaking was issued on the basis that the time-limit would not
be rigidly applied if there were good reasons for allowing extra time
and that the owner would take reasonable steps to obtain vacant
possession before starting the work.
The Inspector who presided over the enquiry found that the
property had a history of action by the environmental health
department and non-compliance with statutory notices, and was in a
state of substantial disrepair. He recommended that the order be
confirmed and made reference to the undertaking by the local
authority. He concluded as follows:
"The owner has demonstrated his willingness to carry out
the works of conversion to 4 self-contained flats and
should be given the opportunity to do so. I appreciate
his desire to occupy one of the flats himself.
Assuming vacant possession he should have little difficulty
in meeting the target dates referred to in the council's
undertaking in the event of the order being confirmed.
Much hinges upon the decision of the Edmonton County Court
as to the status of the 3 occupants. If the court decides
in favour of the owner, upon obtaining vacant possession
which date cannot be predicted with any certainty, the
owner will be in a position to proceed with the conversion
works. Should the decision of the court be unfavourable
to him, failing confirmation of the order the eventual
outcome would be much less certain.
The council's explanation that the times referred to in
their undertaking are not intended to be applied inflexibly
is important because they will need to take into account
time taken up outside the owner's control in obtaining
vacant possession.
In its present unsatisfactory condition 21 High Road
conflicts with the objectives of the housing action area,
and this situation could be remedied by implementation of
the council's proposals following confirmation of the order.
It seems to me that the council's undertaking safeguards the
owner's position in the event of the court deciding in his
favour and otherwise offers him reasonable scope for carrying
the works into effect. In these circumstances, bearing in
mind the desirability of ensuring that the existing
unsatisfactory conditions do not continue indefinitely,
in my opinion it would be appropriate to confirm the order."
The Secretary of State confirmed the order on 11 June 1985.
On 2 August 1985, the applicant's claim for possession against
the three occupiers was dismissed by the County Court on the ground
that they were tenants. The applicant issued fresh proceedings on,
inter alia, grounds of non-payment of rent but on 12 November 1985 the
action was adjourned in order for the tenants to seek legal aid.
By letter dated 1 November 1985, Haringey notified the
applicant that, since six months had expired since the enquiry without
any commencement of work and since there were no good reasons for
allowing the applicant further time, they intended to implement the
compulsory purchase order.
On 13 November 1985, Haringey issued a Notice of Entry and on
17 January 1986 took possession of the property.
The applicant made an application for leave for judicial
review alleging inter alia that Haringey had wrongly exercised their
statutory powers in implementing the compulsory purchase order. Leave
was refused by a single judge of the High Court on 8 January 1986 and
a renewed application before the Divisional Court refused on
23 January 1986. The applicant appealed to the Court of Appeal but
his appeal was dismissed on 14 April 1986.
The applicant will receive compensation for the compulsory
purchase of the property, although his counsel advises that he will
receive less since the property is encumbered with tenants and is in
disrepair.
COMPLAINTS
The applicant complains that his rights under Article 1 of
Protocol No. 1 to the Convention have been infringed by the
implementation of the compulsory purchase order. He complains that he
did everything possible to obtain vacant possession in order to begin
work on the property and that Haringey acted unreasonably and in bad
faith in implementing the compulsory purchase order. He complains
that the principle of proportionality has not been observed in the
case. He also complains that he will receive less compensation than
he would have if the property had been unoccupied.
The applicant also complains that his rights under Article 8
of the Convention have been infringed since he was owner-occupier of
the property, which constituted his main residence.
THE LAW
1. The applicant complains of the implementation of the
compulsory purchase order on his property. He invokes Article 1 of
Protocol No. 1 (P1-1) to the Convention, 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."
The Commission finds that the implementation of the compulsory
purchase order in respect of the applicant's property prima facie
falls within the second sentence of the above provision, as
constituting a "deprivation" of possessions. The Commission must
therefore determine whether on the facts of this particular case the
applicant was deprived of his property in the public interest and
subject to the conditions provided for by law.
The Commission finds first of all that the compulsory purchase
order was issued and confirmed pursuant to the relevant legislation.
Though the applicant sought to challenge the implementation of the
order through judicial review, his application was dismissed by the
High Court and Divisional Court and the Commission finds no evidence
that the compulsory purchase was not effected subject to the
conditions provided for by law.
The question remains whether the compulsory purchase complied
with the requirement of "public interest". The Commission recalls
that because of their direct knowledge of their society and its needs,
the national authorities are in principle better placed to appreciate
what is in "the public interest" and accordingly here, as in other
fields to which the safeguards of the Convention extend, the national
authorities enjoy a certain margin of appreciation; moreover, the
notion of "public interest" is necessarily extensive (Eur. Court H.R.,
James and Others judgment of 21 February 1986, Series A no. 98, p. 32
para. 46). The Commission notes that Haringey sought the compulsory
purchase order as part of its policy in improving the local
accommodation and in eradicating unsatisfactory housing in its area.
The Commission is satisfied in these circumstances that the
policy of Haringey pursued a legitimate aim in the "public interest"
in the improvement of housing. However, the case-law of the Commission
and the Court establish that not only must a measure depriving a
person of his property pursue a legitimate aim, but there must also
be a reasonable relationship of proportionality between the means
employed and the aim sought to be realised (James and Others judgment
loc. cit. p. 67 para. 135). In the case of Sporrong and Lönnroth
(Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,
Series A no. 52) the Court stated with regard to Article 1 (Art. 1), first
sentence that a fair balance must be struck between the demands of
public interest of the community and the requirements of the
protection of the individual's fundamental rights (loc. cit. p. 26
para. 69). This balance would not be found where the person concerned
had to bear an individual and excessive burden (loc. cit. p. 28
para. 73).
The Commission recalls that in the present case the
applicant's property was in substantial disrepair and that it had
already been the subject of numerous statutory notices. The applicant
was informed by letter of 16 May 1983 that his property was below
certain minimum standards and that improvements had to be done. He
was also warned by letter dated 17 August 1983 that a compulsory
purchase order might be sought if progress was unsatisfactory. The
Commission recalls that over a year elapsed before on 5 December 1984
Haringey issued a compulsory purchase order. At the local enquiry
held on 10 April 1985, it appeared that Haringey were willing to allow
the applicant a further six months to commence works on the property
but that, on a continued lack of progress, Haringay implemented the
compulsory purchase order on 13 November 1985.
The Commission notes that the applicant faced significant
obstacles in effecting the necessary repairs, including in particular
the problem of the three tenants who refused to move and in respect of
whom the applicant had instituted two sets of legal proceedings. The
Commission is satisfied however that these mitigating circumstances
were taken into account by the planning inspector and Haringey in
reaching their decision and that reasonable allowance was made to the
applicant in balancing his interests against the requirements of
housing policy. However, in view of the continued delays, which
showed no sign of coming to an end in the near future, the Commission
finds that, in deciding not to adjourn further the implementation of
the compulsory purchase order, the local authority did not infringe
the principle of proportionality as stated above.
In these circumstances, the Commission finds no appearance of a
violation of Article 1 of Protocol No. 1 (P1-1). It follows that this part of
the application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that his rights under Article 8
(Art. 8) of the Convention have been violated since he was owner-occupier of
the expropriated property.
Article 8 (Art. 8) of the Convention provides that:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that the applicant apparently retained
a ground floor room in the property for his use and that the applicant
had the intention of occupying one of the flats when the property had
been converted. In light of these circumstances, the Commission is
not satisfied that the applicant has established that the property in
question constituted his home. However, even assuming that it did so,
the Commission has already considered the conformity of the
expropriation with the requirements of Article 1 of Protocol No. 1
(P1-1) and concludes that any interference would be justified as being
in accordance with law and as necessary in a democratic society for
the protection of health and the rights of others, within the meaning
of paragraph 2 of Article 8 (Art. 8-2).
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)