AS TO THE ADMISSIBILITY OF
Application No. 28892/95
by McKone Estates Limited
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mr. M.P. PELLONPÄÄ, Acting President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
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 25 July 1995 by
McKone Estates Limited against Ireland and registered on 6 October 1995
under file No. 28892/95;
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 applicant is a residential development company based in
Dublin and is represented before the Commission by Thomas Montgomery
and Company, solicitors practising in Dublin.
On 14 March 1977 the Minister for Local Government in Ireland
granted planning permission for a development of 455 houses with a
provision for a local shopping centre and a school ("development A")
on 60 acres at Cooldrinagh, Lucan, County Dublin ("the site"). This
permission overruled an earlier refusal of planning permission on
29 July 1976 by Dublin County Council. The planning permission was
subject to a condition that the developer enter into an agreement with
the County of Dublin and the adjoining County of Kildare regarding the
sewage and surface water pipe drainage arrangements including the
disposal of foul sewage through the treatment works at Leixlip in
County Kildare ("the drainage"). The developer was also required to
agree with the two county councils a contribution towards the costs of
the drainage and the cost of providing a public water supply. In
default of agreement the amount of contribution would be determined by
the Minister for Local Government.
On 1 January 1977 the 1976 Planning Act ("the 1976 Act") entered
into force. This established an appeals board (An Bord Pleanala) and
introduced a provision for a withering of planning permissions seven
years from the date such permission was granted.
In November 1977 the applicant purchased the site with the
benefit of the planning permission, intending to carry out
development A.
The applicant experienced considerable difficulty in attempting
to discuss the drainage of the site with either Kildare or Dublin
County Councils. By a letter of 13 July 1977, Kildare County Council
stated that they did not propose to enter into any negotiations with
the applicant concerning drainage. On legal advice the applicant
submitted simultaneous planning applications regarding the drainage,
to Dublin and Kildare County Councils in August 1979. These planning
applications were refused by both Councils, at first instance in
October 1979 and further refused after appeal to An Bord Pleanala on
5 September 1980.
On 24 April 1981, pursuant to the provisions of Section 55 of the
Local Government (Planning and Development) Act 1963 ("the 1963 Act"),
the applicant served on both Kildare and Dublin County Councils a
compensation claim for three million pounds for the loss in value of
the site due to the inability to enforce the planning permission.
On 20 October 1981, the official property arbitrator commenced
a hearing of the claim for compensation against Kildare County Council.
After a three day hearing, and at the request of counsel for Kildare
County Council, a case was stated to the High Court. In a judgment of
24 June 1983 it was held, inter alia, that the applicant had a prima
facie right under Section 24 of the Public Health (Ireland) Act 1878
("the 1878 Act") to require Kildare County Council to grant permission
for the connecting up of the sewer, subject to the imposition of such
terms and conditions as may be agreed, or as may, in default of
agreement, be determined by the Court or by arbitration. Further it was
held that the application for compensation was premature as the
applicant had failed to assert and exhaust the rights open to it under
the 1878 Act.
In the interim, in March 1983, the applicant had submitted
revised planning applications concerning the development and drainage
of the site to both Kildare and Dublin County Councils. Both
applications were refused at first instance in July 1983 and on appeal
on 8 February 1984. The reasons given included a lack of capacity at
the sewage treatment works to cater for the proposed development A.
In conformity with the judgment of 24 June 1983, the applicant
made an application to appoint an arbitrator.
Prior to the commencement of the arbitration, there was an
interlocutory hearing, at which it was held that the appointment of an
arbitrator was precipitate and therefore invalid. The applicant was
advised not to appeal this order, as by the time the appeal could be
heard by the Supreme Court and, if necessary the matter returned to
arbitration, the planning permission would have lapsed in any event,
it being the end of the seven year period.
On 13 March 1984 the planning permission, which had been granted
seven years previously on 14 March 1977, expired in accordance with the
1976 Act.
On 4 April 1985 an award of 12,500 IR£ was made to the applicant
by the Official Arbitrator in respect of the refusal by Kildare County
Council to allow the drainage connection.
In July 1988 five acres of the applicant's land were made subject
to a compulsory purchase order, due to the building of the Leixlip
bypass. In July 1989 Kildare County Council acquired these five acres
by agreement.
In January 1989 the second phase of the Leixlip Treatment Plant
was commissioned, thereby increasing by more than 100% the capacity of
the sewage works.
On 15 December 1989 the applicant sought planning permission for
a residential development containing 252 houses on 40 acres of the site
("development B"). Permission was granted at first instance by Dublin
County Council on 25 April 1990, subject to certain conditions. This
decision was appealed by various third parties and the applicant. On
31 January 1991 a refusal to grant permission was issued by An Bord
Pleanala, stating that the site fell within an area devoted to
agriculture under the County Development Plan 1980, there were no
detailed drainage plans and that development B would interfere with the
use of the aerodrome and the safety of aircraft in the area.
On 30 July 1991 the applicant served on Dublin County Council a
compensation claim under Section 55 of the 1963 Act, for
IR£ 1.75 million, representing the alleged reduction in value of the
site after the refusal of planning permission. The claim was made out
of time and the applicant thus, on 21 November 1991, sought leave to
extend the time limit. The application to the Circuit Court was heard
on 26 May 1992 and an Order extending the time limit by 14 days was
made. This Order was appealed by Dublin County Council to the High
Court, who in turn stated a case to the Supreme Court on 19 May 1993.
The Supreme Court gave judgment on 1 June 1995 and the Order of the
High Court, affirming the Supreme Court judgment, was made on 13 July
1995. The effect of the judgment and the order of the High Court wasto
rule that the applicant had no valid claim under Section 55 of the 1963
Planning Act ("the 1963 Act"), as the relevant parts of this act had
been repealed by the Local Government (Planning and Development) Act
1990 ("the 1990 Act"), prior to the refusal of planning permission on
31 January 1991.
COMPLAINTS
The applicant complains under Article 6 concerning the length of
proceedings. The applicant further complains that there was no
effective remedy in breach of Article 13, in particular no action lay
in negligence against the Minister or the Local Authority and there was
no claim for compensation under the 1963 Act. The applicant considers
it was the subject of discrimination under Article 14 and states that
the refusal of planning permission amounted to a deprivation of the
peaceful enjoyment of property in violation of Article 1 of Protocol
No. 1. The applicant also invokes Articles 16, 18 and 50.
THE LAW
1. The applicant alleges violations of Articles 6, 13, and 14
(Art. 6, 13, 14) of the Convention and Article 1 of Protocol No. 1
(P1-1) in connection with the conditional planning permission relating
to development A. However, the final decision in this connection was
on 4 April 1985, when the applicant was awarded compensation by the
Official Arbitrator. This final decision is more than six months before
the date on which the application was submitted on 25 July 1995.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant complains under Article 6 (Art. 6) about the length
of the proceedings concerning development B. 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 within a
reasonable time ..."
The Commission notes that the planning permission for
development B was sought on 15 December 1989, permission was granted
by Dublin County Council on 25 April 1990 and then refused on appeal
by An Bord Pleanala on 31 January 1991. The period of time from first
request to final refusal of planning permission was 13 months. The
applicant commenced compensation proceedings on 30 July 1991 and the
final order of refusal from the High Court (following the Supreme Court
judgment) was on 13 July 1995. The total duration from the application
of planning permission to the final refusal of compensation was of
5 years 7 months. The Commission notes that these proceedings consisted
of hearings by the Circuit Court, the High Court and the Supreme Court
and a final order by the High Court.
In the circumstances, and even assuming that Article 6 (Art. 6)
applies from 15 December 1989, when the applicant applied for planning
permission, to the final refusal of compensation on 13 July 1995, the
Commission does not consider the proceedings exceeded the "reasonable
time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.
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.
3. The applicant complains under Article 1 of Protocol No. 1 (P1-1)
that the refusal of planning permission for development B deprived it
of the peaceful enjoyment of its possessions. Article 1 of Protocol No.
1 (P1-1) 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 contributions
or penalties."
The Commission notes that the applicant applied for planning
permission for development B and this request was refused. The
Commission recalls that, as a general principle, the protection of
property rights ensured by Article 1 of Protocol No. 1 (P1-1) cannot
be used as a ground for claiming planning permission to extend
permitted use of property (see No. 20490/92, Dec. 8.3.94, D.R. 76-A,
p. 108). When the applicant applied for planning permission in
December 1989 planning permission for development A had already lapsed
such that the applicant cannot claim that it was deprived of the right
to build on the land. Even considering the position as at November
1977, when the applicant bought the land with planning permission, it
cannot be said that the applicant acquired an absolute entitlement to
develop as it must have been aware that the 1976 Act provided for
planning permission to wither after seven years. Accordingly the
refusal to grant planning permission for development B did not involve
the removal or alteration of a valid planning permission.
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.
4. The applicant complains that the site was marked on the
Development Plan of Dublin County Council as agricultural land. The
applicant further complains that the absence of transitional provisions
in the 1990 Act defeated the applicant's claim under the 1963 Act. The
applicant invokes Article 14 (Art. 14).
Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that in Pine Valley Developments Ltd and
Others v. Ireland (Eur. Court HR, judgment of 29 November 1991,
Series A no. 222, p. 27 para. 64) it was held that there was a
violation of Article 14 in conjunction with Article 1 of Protocol No. 1
(Art. 14+P1-1), where there was a difference of treatment between two
of the applicants and other holders of permission in the same category.
There is however no such discrimination in the present case: the zoning
of the land as agricultural took place prior to the application for
planning permission and there is no evidence that the applicant was
treated any differently from any other company or individual seeking
planning permission in a similar site.
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.
5. The applicant complains under Article 13 (Art. 13) that it had
no action in negligence against the Minister or the Local Authority and
no claim for Compensation under the 1963 Act.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present
case, the Commission has rejected the substantive claims as disclosing
no appearance of a violation of the Convention. For similar reasons,
they cannot be regarded as "arguable". In any event Article 13
(Art. 13) cannot be invoked to require a particular content of the
substantive provisions of civil law.
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.
6. The applicant also alleges violations of Articles 16, 18 and 50
(Art. 16, 18, 50) of the Convention.
The Commission finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols, and that this part of the application must
be rejected in accordance with Article 27 (Art. 27) 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