AS TO THE ADMISSIBILITY OF
Application No. 22245/93
by M.J.C. and J.E.C.
against the United Kingdom
The European Commission of Human Rights (First Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 12 May 1993
by M. J. C. and J. E. C. against the United Kingdom and
registered on 16 July 1993 under file No. 22245/93;
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 a husband and wife, born in 1957 and 1959
respectively. They live in Whitstable in Kent, and are
represented before the Commission by Mr. G.J. Hewitt, solicitor,
of Peterborough. The facts of the case may be summarised as
follows:
The particular circumstances of the case
In 1986 the applicants bought a piece of land in Kent. It
had the benefit of a 1961 outline planning consent for the
demolition of one house and the erection of a new dwelling on the
same site. The house had been demolished in 1963, but no house
had been built. The applicants paid £14,500 for the land. A
dispute ensued between the applicants and the local authority
about the validity of the 1961 planning permission, and at the
same time the applicants applied for planning permission for a
new house. The application was refused, but in June 1987 the
authority notified the applicants that the original permission
was regarded as valid.
In November 1987 the local authority made an order under
Section 45 of the Town and Country Planning Act 1971 (TCPA),
revoking the 1961 permission. The revocation order was
confirmed, after a public enquiry, by the Secretary of State on
17 August 1989.
The applicants gave notice of a claim for compensation under
Section 164 of the TCPA. On 27 March 1991 the Lands Tribunal
gave an interim award of £108,626.84, consisting of £106,750
depreciation on value of the land and £1,876.84 abortive design
expenditure. The member of the Lands Tribunal valued the land
with the benefit of the 1961 permission at £115,000, and without
the permission at £8,250. Applying the assumption in Section
164(4) TCPA, that is, if one were to assume that the house which
had been demolished in 1963 were still standing, he put the value
of the land after the revocation at £70,000. In such a case, the
compensation would be £45,000 (£115,000 less £70,000).
The local authority appealed to the Court of Appeal which,
on 20 March 1992, gave judgment in the authority's favour. The
Vice-Chancellor pointed out that the authority's argument
involved:
"...as a necessary corollary, the proposition that in
assessing compensation for the revocation of permission to
demolish and rebuild a house, the valuer must assume that
permission to rebuild the house would be granted. On its
face the proposition seems bizarre."
The House of Lords, to which the applicants appealed (with
leave), also found in the local authority's favour. Lord Oliver
of Aylmerton, giving the judgment of the House, recalled that the
terms of Section 164(4) were mandatory. He also referred to the
principle that an intention to take away the property of a
subject without giving him a legal right to compensation is not
to be imputed to the legislator unless expressed unequivocally.
He found that the terms of Section 164(4) were entirely
unequivocal. He accepted that the
applicants had suffered hardship in being deprived of a
substantial part of the value represented by the revoked
permission, but that could not affect the proper way to construe
the statute.
Lord Oliver referred to the legislative history of Section
164(4). The precursor to Section 164(4) in the Town and Country
Planning Act 1947 was perfectly logical in the context of its
initial drafting, as compensation for depreciation in the value
of land in consequence of the revocation of planning permission
was only payable if a development charge had been paid by the
landowner in respect of the development covered by the revoked
permission. No development charge was payable in respect of
existing use developments falling within Schedule 3 to the 1947
Act (replaced by Schedule 8 to the TCPA). Accordingly, it had
been necessary to provide in the calculation of the amount of
depreciation a base value which assumed the existence of a
permission for existing use development. Development charges had
been abolished in 1953 and 1954, but the provision for
compensation was only amended by deletion of the reference to
development charges: what became Section 164(4) was expressly re-
enacted. Lord Oliver could not, in such circumstances, accept
an argument that the old provision had not been removed and that,
shorn of its initial context, it had taken on a meaning it was
never intended to have. He concluded:
"... [it is impossible to escape the conclusion] that the
clear purpose of the legislature was to limit the amount of
compensation payable for depreciation due to a revocation
of planning permission by fixing a base value for the land
in all cases on the footing that planning permission for
any class of Schedule 8 development would be granted. That
must include, however arbitrary it may seem, even
development of that very class which was the subject matter
of the revoked permission.
The conclusion is not one which I embrace with any
enthusiasm and it may well be that the particular
circumstance of the revoked permission being the very
permission comprehended in the statutory assumption was not
one which the legislature foresaw as ever likely to occur.
But, whilst this provides a sound reason for the hope ...
that Parliament may look again at ... 'an anachronistic
relic', it cannot provide an avenue for escape from the
clear and express words of the Section. I would dismiss
the appeal."
The applicants accordingly received compensation of £45,000.
Relevant domestic law
Section 45 TCPA permits a local planning authority to revoke
or modify planning permission, in whole or in part, "[i]f it
appears to the local planning authority, having regard to the
development plan and to any other material considerations, that
it is expedient to revoke or modify ...", subject to certain
conditions. In particular, the conditions require confirmation
of the order by the Secretary of State.
As to compensation, Section 164(1) TCPA provides for
compensation to be paid where planning permission is revoked or
modified under Section 45 TCPA.
Section 164(4) TCPA provides for compensation to be
calculated on the basis that it is assumed "that planning
permission would be granted for development of any class
specified in Schedule 8". Schedule 8 refers to "the rebuilding
... of any building which was inexistence on [1 July 1948]; the
rebuilding as often as occasion my require on any building
erected after [1 July 1948] which was in existence at a material
date; ...", subject to certain conditions.
COMPLAINTS
The applicants allege a violation of Article 1 of Protocol
No. 1. They state that they have been denied the compensation
to which they were entitled at law because of a manifest error
in the legislation. They point out that Section 164(4) was
intended to protect the interests of a landowner and to ensure
that, if planning permission were revoked, the owner would retain
the right to rebuild a house without a development charge, and
that the possibility of a local authority revoking planning
permission to rebuild after demolition of the first house but
before erection of the new house was not intended by the
legislator.
The applicants accept that the price they paid for the plot
was relatively low because of some uncertainty as to the validity
of the 1961 planning permission, but point out that they did
eventually establish that the permission was valid.
The applicants also allege a violation of Article 13 of the
Convention. They submit that the failure to amend the 1947
provisions after the abolition of the development charge has
deprived the applicants of the remedy to which they would
otherwise be entitled and which Parliament intended them to have.
THE LAW
1. The applicants allege a violation of Article 1 of Protocol
No. 1 (P1-1) to the Convention. Their complaint relates not to
the revocation of the planning permission as such, but to the way
in which compensation to which they were entitled was calculated
in this case. 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 applicants bought their land
in 1986 with the benefit of the planning permission which had
been granted in 1961. Although there was dispute as to the
validity of that permission, and although the applicants
unsuccessfully applied for a fresh grant of planning permission,
the 1961 permission was the subject matter of the revocation of
November 1987 which was eventually confirmed by the Secretary of
State on 17 August 1989. In these circumstances the Commission
has no reason to doubt that the applicants' rights under Article
1 of Protocol No. 1 (P1-1) were thereby interfered with, and thus
the question of whether the applicants received adequate
compensation itself falls within the scope of the provision.
The Commission finds that the interference in question was
not a formal expropriation of the applicants' property, nor was
it a de facto deprivation. One aim of planning legislation is
to prevent undesirable development by controlling the use to
which property is put. Whilst the value of the applicants'
property was affected by the revocation of the planning
permission, the reduction in value was as a result of the new
limits on the control of the property.
Accordingly, the interference in the present case must be
considered as a control of the use of property falling within the
scope of the second paragraph of Article 1 (Art. 1-2) (cf. Eur.
Court H.R., Pine Valley and others judgment of 29 November 1991,
Series A no. 222, ("Pine Valley judgment"), p. 25, para. 56).
The Commission is not required to consider the lawfulness
and purpose of the revocation of the planning permission as the
applicants complain of the compensation provisions rather than
the revocation (and have accordingly submitted no documentation
in this respect) and in any event they have not complied with the
requirements of Article 26
(Art. 26) of the Convention in that they did not challenge the
revocation in the High Court.
The Commission must, however, determine in the context of
the proportionality of the interference, whether the compensation
provisions in the present case were such as to render the
interference disproportionate.
The Commission first recalls that even where total
deprivation of possessions is at issue, under the second sentence
of the first paragraph of Article 1, Article 1 (Art. 1-1) does
not guarantee a full right to compensation in all circumstances
(Eur. Court H.R., James and Others judgment of 28 February 1986,
Series A no. 98, p. 36, para. 54). Compensation terms are,
however, material in assessing where the contested legislation
respects a fair balance between the various interests involved
(ibid.).
The Commission recalls that the applicants bought land with
the benefit of a 1961 planning permission in 1986. They paid
£14,500 for it, and accept that the price was relatively low
given the uncertainty as to the validity of the planning
permission. At the end of the compensation proceedings, they
were awarded compensation of £45,000. Whilst it is true that the
Lands Tribunal initially awarded a considerably larger sum, it
is plain from the judgments of the Court of Appeal and the House
of Lords that the Lands Tribunal did not have the statutory power
to award that higher amount, because of the anomaly in the Town
and Country Planning Act 1971 about which the applicants
complain.
Notwithstanding the reasons that led to the "bizarre"
compensation provisions which were applied in this case, the
Commission finds that the compensation actually paid to the
applicants was not so inadequate that it could be said that a
fair balance has not been struck in this case.
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 applicants also allege a violation of Article 13 (Art.
13) of the Convention.
The Commission has declared inadmissible the applicants'
claims under Article 1 of Protocol No. l (P1-1) as being
manifestly ill-founded. It also finds that those claims are not
"arguable" within the meaning of that term ascribed to it by the
European Court of Human Rights (cf., Eur. court H.R., Boyle and
Rice judgment of 27 April 1988, Series A no. 131, p. 23, para.
24).
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.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy