AS TO THE ADMISSIBILITY OF
Application No. 28488/95
by Richard James Joseph McGONNELL
against the United Kingdom
The European Commission of Human Rights sitting in private on
22 January 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 June 1995 by
Richard James Joseph McGONNELL against the United Kingdom and
registered on 9 September 1995 under file No. 28488/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
23 April 1997 and the observations in reply submitted by the
applicant on 18 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
A. The particular circumstances of the case
The applicant is a British national. He was born in 1955.
In October 1982 the applicant purchased a vinery (glasshouses)
and a plot of land. In 1983 he applied for permission to build a
dwelling on the land. Permission was refused and he lost an appeal in
May 1984.
In May 1986 the applicant, who was in financial difficulties,
moved to live in a flower packing shed on his property as a temporary
measure. His problems were compounded by frost and hurricanes in 1987
- 1989, which destroyed part of his glasshouses together with the
crops.
On 28 June 1990 a Detailed Development Plan Number 6 (DDP No. 6),
under Section 6 (1) of the Island Development (Guernsey) Law 1966 as
amended ("the 1966 Law"), was approved. This plan covered the
applicant's land.
Prior to the approval of DDP No. 6 there was a Public Planning
Inquiry, in accordance with section 10 of the 1966 Law. At that
inquiry, the applicant was represented by an advocate. The applicant's
representations that he be allowed a dwelling place on the land were
rejected by the Inspector, on the basis that a dwelling would be an
intrusion into the agricultural/horticultural hinterland.
Within DDP No. 6 the applicant's land was zoned as "Developed
Glasshouse Area" and the adjoining land was zoned as a "White area".
In September 1990 the applicant submitted to the Island
Development Committee (IDC) a retrospective application for permission
to convert his packing shed within the area zoned "Developed Glasshouse
Area" into a dwelling. The application for change of use was refused
in July 1991. The IDC requested the applicant to cease using his shed
as a dwelling within 3 months. Due to his financial position the
applicant stayed in his shed. In October 1991, when his debts had
risen to over £100,000, the applicant sold part of the land and
glasshouses, but kept the shed and a plot of land alongside it.
In March 1992 the applicant pleaded guilty in the local
Magistrates Court to a charge of illegal change of use of the shed.
He was fined £100. No further order was made against him.
In June 1993 the Royal Court of the Island of Guernsey ordered
the applicant to vacate the shed and restore it back to a packing shed
within 3 months.
On 10 August 1993 the applicant wrote to the IDC, once again
asking for a change of use of the packing shed. His representative's
letter of that date underlined that the applicant would continue to
work in the glasshouses which he still rented, that the exterior of the
property would not be changed at all, that the applicant would comply
with building regulations, that the future use of the building would
not be prejudiced by permission to change the use, and that the use of
the building as a dwelling would not derogate from any visual amenity.
On 25 October 1994 the IDC, having previously conducted a site visit,
refused to agree to the change of use. Its letter of 26 October 1994
gave as a reason:
"The site is located within a Developed Glasshouse Area and the
Committee's written statement of policy makes no provision for
the form of development proposed."
The applicant appealed to the Royal Court. At the hearing on
6 June 1995, the applicant was represented by Advocate Perrot. The
Royal Court sat as a full court and was presided over by the Bailiff.
Advocate Perrot accepted that the written statement provided for no
development other than Developed Glasshouse of the area, but submitted
that there were nevertheless reasons in the case to permit the change
of use: the external appearance of the building would not change and
there would be no future prejudice to the horticultural use of the
land, such that it was unreasonable for the IDC to take an unduly
narrow view of what it allowed under the DDP. The Bailiff then summed
up the applicant's complaints to the Jurats, instructing them that it
was for the IDC to satisfy the Jurats that the IDC's decision was
reasonable, rather than the reverse.
The appeal was dismissed on the same day. The Jurats were
unanimous in their finding that the decision of the IDC was a
reasonable one. The decision recites the grounds of appeal, but gives
no reasons.
B. The relevant domestic law and practice
Land use in the island of Guernsey is controlled by the
provisions of the Island Development (Guernsey) Law 1966, as amended
("the 1966 Law").
Section 6 (1) of the 1966 Law provides for the preparation of:
"Detailed Development Plans, indicating the manner in which the
Island Development Committee (IDC) proposes that land should be
used (whether by development or otherwise) and the stages by
which such development should be carried out."
Section 6 (3) of the 1966 Law states that such plans may:
"define areas in respect of which the Committee recommends that
permission for development in pursuance of the provisions of
Part III of this Law -
(i) should not be granted,
(ii) should not be granted unless by reason of special
considerations relating to the site it would be unreasonable for
such permission not to be granted,
(iii) should, subject to the provisions of Part III of this Law,
be granted ...".
A Detailed Development Plan (DDP) has legal effect when approved
by the States of Deliberations (the Guernsey legislature). Prior to
approval of a DDP a Public Planning Inquiry may be held.
Interested parties are permitted to make representations to the
Inspector at a Public Planning Inquiry either in person or by an
advocate of the Royal Court, or other prescribed person. The procedure
at the Planning Inquiry is at the discretion of the Inspector. He has
power to summon and examine all persons as he thinks fit; require any
such person to answer any question or furnish any information or
produce any document; take statements from all persons he may think fit
and enter and inspect any premises he deems necessary for the purposes
of the inquiry.
After holding a Planning Inquiry the Inspector prepares a written
report containing his recommendations on the DDP or proposals for
alteration and submits the report to the IDC.
A DDP has a duration of five years under section 7 of the 1966
Law, and within that period Section 8 of the 1966 Law requires the IDC
to review the Plan.
In connection with "Developed Glasshouse Areas" the DDP
provides:
"Development within these zones for other purposes will not be
permitted but further modernisation and glasshouse consolidation
will not be resisted. Obsolete glasshouses in these areas may
be demolished so that the land may revert to open horticultural
or agricultural use until required again for horticultural
development."
"White areas" are defined as being reserved for agricultural use
and/or visual amenity. In such areas development will in general be
prohibited, and whilst in specific situations developments may be
approved there will be a presumption in favour of retaining the present
use of land and buildings.
Development is defined in section 40 of the 1966 Law as "the
carrying out of any building engineering, mining or other operation in,
on, over or under land and includes the making of any material change
in the use of any building or land".
By section 14 (1) of the 1966 Law, written permission must be
obtained from the IDC for the carrying out of any development of land.
Under section 17 the IDC must take into account any relevant DDP.
Departures from a DDP are permitted by Section 18 if:
"in the opinion of the Committee, it is a departure of a minor
nature not warranting specific reference to the States under the
provisions of section 8."
By section 26 of the 1966 Law, a person has a right of appeal
from a decision of the IDC concerning a change of use, to the Royal
Court. An appeal may be made on the ground that the decision of the
Committee was "ultra vires or was an unreasonable exercise of its
powers".
The Composition of the Royal Court
When sitting as a full court, the Royal Court is presided over
by the Bailiff or in his absence the Deputy Bailiff or a Lieutenant-
Bailiff. The Court consists of not less that seven out of the twelve
Jurats.
The Bailiff
The Bailiff is appointed by the Sovereign and holds office during
Her Majesty's pleasure. He is the president of the Royal Court and
President of the Court of Appeal, spending the majority of his time
discharging judicial functions. By convention, he is a senior qualified
lawyer.
The role of the Bailiff as the President of the Royal Court is
to determine questions of law and to direct the Jurats on the relevant
law and as to the matters which they should consider in determining
issues of fact. The directions of the Bailiff are delivered orally in
open court, whereupon the Jurats retire to consider their decision in
private.
The Bailiff is also the President of the States of Deliberation
(the Island legislature), and President of the States of Election (an
electoral college responsible for appointing the jurats). Within both
of these roles he has no original vote, but does hold a casting vote
in the event of equality of votes.
The States of Election consists of the following members:
(a) The Bailiff;
(b) The 12 Jurats;
(c) 12 Conseillers (persons who have served for at least
30 months in the States of Deliberations and who are
elected by universal suffrage for a term of 6 years);
(d) The 10 Rectors;
(e) The Law Officers of the Crown (i.e. HM Procureur and HM
Comptroller);
(f) 33 People's Deputies (elected to the States by universal
suffrage for a term of 3 years);
(g) 34 Douzaine Representatives (persons nominated to the
States by the Douzaine - or parish councils - for a term of
1 year, a council being elected by the voting inhabitants
of the parish in question).
The Bailiff is also the head of the administration of the Island.
It is through the Bailiff that official communications between the
Island's administration, Her Majesty's Government and the
administrations of the other islands are channelled. He chairs four
States Committees, namely the States Appointments Board (dealing with
senior civil service appointments - this does not include any of the
personnel of the IDC), the Emergency Council (charged with determining
whether a state of emergency should be declared), the Legislation
Committee (which is charged with ensuring that legislation is drafted
in accordance with resolutions of the States of Deliberation) and the
Rules of Procedure Committee which deals with the procedure of the
States of Deliberation and Election. The Bailiff takes no part in day
to day decision making by States Committees. In particular, he takes
no part in the deliberations of the IDC.
Jurats
Once appointed by the States of Election, a Jurat holds office
until he reaches 70 years of age. His period of office may be extended
to the age of 75 with the approval of his colleagues. By the second
proviso to section 5 (1) of the Royal Court of Guernsey (Miscellaneous
Reform Provisions) Law, 1950 a Jurat can only be dismissed by Her
Majesty, although the Bailiff can call upon a Jurat to resign.
Jurats do not form part of the States of Deliberation, although
a jurat may be a member of certain Committees of the States, such as
the Lifeboat Committee and the Legislation Committee. However Jurats
are not eligible to serve on the States Committee for Home Affairs, the
Gambling Control Committee or any States Committee which administers
legislation, the provisions of which include a right of appeal to the
Royal Court against a decision of the Committee. Thus Jurats may not
be members of the IDC, although they used to preside over planning
enquiries prior to the adoption of DDPs. This is no longer current
practice.
Appeal from the Royal Court
An individual has a right to petition the Judicial Committee of
the Privy Council, sitting in London, for special leave to appeal to
the Judicial Committee against the decision of the Royal Court.
However such leave is only given if the Judicial Committee is satisfied
that the case raises either a far reaching question of law or a matter
of dominant importance.
COMPLAINTS
The applicant claims that his right to respect for his home has
been violated. He also complains about the manner of conduct of these
proceedings, alleging that the judges in the Royal Court were civil
servants and that the Royal Court failed to give any reasoning for its
judgment of 6 June 1995.
The applicant alleges violations of Article 6 para. 1 and
Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 June 1995 and registered on
9 September 1995.
On 27 November 1996 the Commission (First Chamber) decided to
communicate the application to the respondent Government.
The Government's written observations were submitted on 23 April
1997, after an extension of the time-limit fixed for that purpose. The
applicant replied on 18 June 1997.
On 15 January 1998, the First Chamber decided to remit the case
to the Plenary Commission.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) about
the proceedings and the lack of independence of the Royal Court.
Article 6 (Art. 6) of the Convention, provides so far as relevant
as follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal ..."
The Government submit that the applicant at no point had a right
to make use of his land for residential purposes. The shed which he
made his home was situated in a zone classified as a "Developed
Glasshouse" area and thus, except in special circumstances, residential
use was not permitted. In these circumstances the Government argue that
the proceedings, which ended with the Royal Court's decision of 6 June
1995, did not determine the applicant's civil rights or obligations
within the meaning of Article 6 (Art. 6) of the Convention.
The Government argue in the alternative that the Royal Court did
comply with the requirement of an "independent and impartial tribunal"
in accordance with Article 6 para. 1 (Art. 6-1) of the Convention. In
particular they note that in his role as the president of the Royal
Court, the Bailiff acts judicially and not in any sense as part of the
executive. Further, the Jurats are not members of the States of
Deliberation and may not be members of the IDC. The Government also
state that the Jurats were charged with decisions of fact and whether
the IDC's decision was reasonable or not and, as with a lay jury on a
criminal case in the United Kingdom, no reasons were given for a
finding of fact.
The Commission considers, in the light of the parties'
submissions, that this part of the case raises complex issues of law
and fact under the Convention, including questions of the applicability
of Article 6 (Art. 6) to the proceedings, the determination of which
should depend on an examination of the merits.
The Commission concludes, therefore, that this part of the
application is not manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
2. The applicant complains under Article 8 (Art. 8) of the
Convention, stating that the fact that he was unable to live on his
property amounted to a violation of his right to respect for his home.
Article 8 (Art. 8) of the Convention provides:
"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 Government submit that the shed where the applicant was
living did not constitute a home for the purposes of Article 8
(Art. 8) of the Convention. They note that the applicant commenced
residence in the shed at a time when such use was unlawful, and it
remained unlawful throughout. In the alternative the Government argue
that any interference with the applicant's residence in the shed was
in accordance with the 1966 Law, and pursued a legitimate aim, namely
planning regulations that sought to control development on the island.
As to the necessity for any interference, the Government point to the
margin of appreciation permitted to States, and to the procedural
safeguards which were present in the case. They also point out that
there was nothing extreme about the case: the applicant's land was
zoned as a Developed Glasshouse area, and it was not unreasonable for
the IDC to take into account the contents of DDP 6 or to decide not to
derogate from it.
The applicant repeats that he has not built anything on his land:
he merely wishes to live in his shed, whose exterior appearance remains
wholly unchanged. He also claims that, although he is not allowed to
live in the shed, he has to pay rates on an "unregistered dwelling".
The Commission notes that the applicant's occupation of the shed
was clearly unlawful: planning permission was refused on two occasions,
and the applicant was convicted in March 1992 of illegally changing the
use of the shed. However, illegality of occupation will not
necessarily prevent that occupation from being a person's "home" within
the meaning of Article 8 (Art. 8) of the Convention, and in the present
case the Commission accepts that the applicant was using his packing
shed as his home (see Eur. Court HR, Buckley v. United Kingdom,
judgment of 25 September 1996, Reports-1996-IV, p. 1288, para. 55).
The refusal of planning permission and the requirement to leave
within three months thus interfered with the applicant's right to
respect for his home.
It is therefore necessary to consider whether the interference
was "in accordance with the law", "pursued a legitimate aim" and was
"necessary in a democratic society", within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention.
It was undoubtedly within the powers of the States of Guernsey
through their Island Development Committee, applying the 1966 Law, to
refuse permission for a change of use in respect of the applicant's
shed, and all the relevant provisions were available. The interference
was therefore "in accordance with the law." Further, the restrictions
on the change of use of the applicant's shed can be said to have been
in pursuance of the legitimate aim of preserving the environment and
local character of the landscape by maintaining existing land uses.
With regard to whether the refusal of permission to allow the
applicant to live in his shed was "necessary in a democratic society",
the Commission recalls that, in the sphere of planning permission, the
State enjoys a wide margin of appreciation (see the above-mentioned
Buckley judgment, p. 1292, para. 75). Further, the European Court of
Human Rights in the case of Buckley found that the procedural
safeguards available to an applicant were relevant in determining
whether a state has remained within its margin of appreciation (above-
mentioned Buckley judgment, p. 1292, para. 76).
In the present case, the applicant must have been aware that his
occupation of his shed was unlawful when he applied for planning
permission: permission had already been refused once, and he had
pleaded guilty to unlawful change of use of the shed. The area was
zoned as a Developed Glasshouse area, and it was quite impossible for
the applicant to claim that his occupation of the shed fell within that
category. His application could only be granted if the IDC, and
subsequently the Royal Court, accepted that the proposed departure from
the DDP was no more than a minor development not warranting specific
reference to the States. In the Royal Court, the burden was on the IDC
to satisfy the Court that its decision not to grant permission was
reasonable, and after the oral proceedings, and the directions from the
Bailiff, the Jurats found that the decision was not unreasonable.
It is true that there was no express consideration of Section 18
of the 1966 Law before the Royal Court, as it is also true that there
was no express weighing up by the Royal Court of the applicant's
interests - in staying in his shed - as against the interests of the
community in ensuring compliance with the DDP. However, where there
is a clear prohibition on residential development, the Commission
considers that a failure expressly to balance various interests cannot
of itself lead to the conclusion that an interference with the right
to respect for home is not "necessary" in a democratic society. This
is particularly the case where, as here, the applicant was able to, and
did, participate in the inquiry which led to the planning policies at
issue: the applicant was able to air his views both at that early stage
and later, in the planning proceedings proper.
Given the clarity of the prohibition on residential development
in the Developed Glasshouse area, the importance of appropriate
planning policies to development and the applicant's knowledge of the
position, the Commission finds that the interference with the
applicant's right to respect for his home was not disproportionate to
the planning aims being pursued by the Guernsey authorities.
It follows that the authorities did not exceed their margin of
appreciation, and that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint concerning the procedures before the
Guernsey courts;
DECLARES INADMISSIBLE the remainder of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy