AS TO THE ADMISSIBILITY OF
Application No. 26889/95
by John F. PANVERT
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 March 1995 by
John F. PANVERT against the United Kingdom and registered on 23 March
1995 under file No. 26889/95;
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 British citizen born in 1946. He lives in
Hildenborough in Kent. The facts of the case as submitted by the
applicant can be summarised as follows.
In mid-1988, the applicant purchased a ruined oast house (a
building used for the drying of hops), about 60% of which he claims
remained standing. He started to restore and renovate the building.
On seeking a grant for this work, he was advised by Sevenoaks District
Council that the building's state of disrepair was such that in
planning terms the building did not exist and restoration would be
considered to constitute the erection of a new building, which would
require planning permission. The applicant claims that he was advised
that planning permission would not be granted in any case. His own
advisers, John Little Associates, advised him that the building was
agricultural and that it could never lose its title so that no planning
permission was necessary for its restoration or development. Pursuant
to this advice he started to restore the oast house.
On 21 February 1989 the Council issued an enforcement notice
("the first enforcement notice") relating to work undertaken on the
construction of a structure above one of the two kilns at the oast
house. The applicant was required to "demolish the building operations
involving roof construction". On 28 June 1989, the inspector allowed
his appeal against the first enforcement notice. He found that there
had been a breach of planning control, in that the applicant had
changed the appearance of the structure without consent, but further
found that the development was not so harmful that its removal was
justified. He therefore granted consent for retention of the works
which were "nothing more than those required to protect the structure
from the elements".
On 17 March 1989 the applicant submitted an application for
planning permission for the conversion of the oast house into a
dwelling, which was refused in early June of the same year on the
grounds of conflict with Green Belt, rural settlement and landscape
policies.
The applicant continued to restore the property and on 21 May
1991 was issued with a further enforcement notice ("the second
enforcement notice") relating to alleged further breaches of planning
control in respect of a series of building operations at the oast
house. The second enforcement notice required the demolition, within
one month, of building operations which affected the appearance of the
structure.
The applicant appealed, relying on grounds (a), (b) and (h) of
Section 174 (2) of the Town and Country Planning Act 1990, that is,
that planning permission should have been granted (ground (a)), that
there was no breach of planning control (ground (b)), and that the
period for taking the required measures was too short (ground (h)).
On 25 and 26 February 1992 a public inquiry was held and the inspector
visited the site on 26 February 1992. On 27 March 1992 the inspector
dismissed the appeal stating:
In connection with the ground (b) appeal.
"6. From the photographic and other evidence before me, my own
view is that in 1987 Kettleshill Oast was so dilapidated and
derelict that, as a matter of fact and degree, it no longer
constituted a building, in that the first floor superstructure
and flooring, roof, and western wall of the stowage were missing,
and the roundels were truncated with missing brickwork and no
roofs. The works carried out by the time of the 1989 appeal were
in my view of such limited nature that the oast could still not
be regarded as a building. In this situation I am firmly of the
opinion that, as a matter of fact and degree, the works carried
out since 1989 are properly regarded as new building works ....
Consequently, these works require planning permission and, as
such permission has not been obtained, a breach of planning
control has occurred."
The inspector stated that he considered the building to have no
present use and that the applicant had provided no evidence regarding
future use. He therefore considered that there were no special
circumstances which justified what, in planning terms, was the
construction of a new building.
The inspector accepted that the building as it now stood was
attractive, that oasts were a typical feature of the Kent countryside
and that the oast did not harm the appearance of the landscape and
could even be said to have effected some visual improvement. However,
he concluded, in connection with the ground (a) appeal:
"16. ... On balance, however, ... I have decided that the
objections to the development in the Green Belt in particular and
the countryside in general, outweigh the benefits to the
landscape. I conclude therefore, that in the particular
circumstances of this case an exception is not justified to
policies of restraint on inappropriate development in the
countryside, having particular regard to the fact that the site
lies within an area designated as Green Belt, an Area of
Outstanding Natural Beauty and a Special Landscape Area. I have
decided that the development is thereby unacceptable.
Accordingly ... I shall refuse to grant planning permission in
respect of the deemed application.
17. ... In my view if I were to allow this appeal it is probable
that my decision would be cited as a precedent making it more
difficult for the Council to resist similar development elsewhere
... I am satisfied that if this appeal succeeded the objectives
of longstanding policies of restraint would be undermined.
19. You laid great stress at the inquiry on your view that the
use of the building is not a matter before me, and that I should
concern myself only with the effect of the building's physical
fabric on its surroundings. I take the point you are making but
consider that, in view of the highly sensitive location of the
site, the likely future use of the building is a material, though
not an overriding, consideration. Given the nature of the works
carried out, and the limited extent of your client's landholding,
in the vicinity of the site, I find it difficult to envisage the
building being used for agricultural purposes. I am also aware
that planning applications for conversion of the building to
residential use were submitted in 1987 by your client's
predecessor, and by your client himself in 1991 [in fact 1989].
I feel it is a reasonable assumption that if I were to allow the
present appeal it would be virtually impossible for the Council
to resist conversion of the building to a dwelling, and in my
view this would be the most likely future use. I emphasise that
considerations of future use of the building have had no direct
influence on my decision. However, I feel the Council is
justifiably concerned about your client's intentions, and this
is a matter which strengthens me in my view that the development
is unacceptable."
The inspector granted an extension of 6 months for the demolition
of the building works.
On 24 April 1992 the applicant applied for leave to appeal to the
High Court. His grounds of challenge were that the decision was not
within the powers conferred by the Town and Country Planning Act 1990,
and that the requirements of the Town and Country Planning
(Enforcement) (Inquiries Procedure) Rules 1981 had not been complied
with. The applicant contended inter alia that the inspector had erred
in law (i) in that he had found that the works to the oast house
improved the landscape but nevertheless concluded that the relevant
landscape policies counted against the grant of planning consent; (ii)
in that he had referred to guidance on re-use of agricultural buildings
whereas the case was concerned not with change of use development but
with "operational development"; (iii) in that the consideration of the
precedent effect of a grant of planning permission was tainted by
taking into account an irrelevant factor, namely the "unlawful
conclusion that to grant planning permission would be contrary to the
applicable policies", and (iv) in that there was no evidence that
granting permission would have an undesirable precedent effect.
Leave to appeal was granted on 9 June 1992. On 27 May 1993 the
appeal was dismissed. The judge noted that he was not concerned with
the inspector's decision on the ground (b) appeal, and found in
connection with the ground (a) appeal (that is, the refusal of planning
permission) inter alia the following:
"In my judgment, the process of the inspector's reasoning
is clear and reasonable, and reveals no error of law ...
... [the inspector] attached more weight to the policies of
restraint. That was a matter of planning judgment which
was entirely for him. It is impossible to say that in so
doing he acted unreasonably or failed to have regard to his
own conclusion on the effect on the Area of Outstanding
Natural Beauty and Special Landscape policies. He did so
in terms, and then reached a balanced judgment. ...
It cannot, in my judgment, be said that the effect of
granting permission on these policies of restraint was not
a material consideration ... I would only add that it is
clear from his decision letter that this question of
precedent was not the inspector's reason for dismissing the
appeal. It was very much a top-up point, which he did not
need to have made."
The applicant's appeal to the Court of Appeal was dismissed on
23 June 1994. The Court of Appeal noted that the question whether
planning consent was needed at all - the ground (b) appeal to the
inspector - had not been pursued before the first instance judge, and
that the Court had refused to permit it to be raised on the appeal.
It nevertheless noted:
"[Counsel for the applicant] submits that ... the inspector
misdirected himself by making the finding that the work, the
subject matter of the enforcement work, was new building work.
He contends that that was a matter of law as opposed to a matter
of fact. With respect, having seen the material photographs and
the degree of dilapidation that this building suffered from, I
am quite unable to accept that submission. I take the view that
indeed it was a matter of fact and degree for the inspector to
determine whether the work about which complaint was made
amounted to new building work, and he was certainly at liberty
on the facts as found by him to make that affirmative finding.
For my part even if the inspector had been mistaken, and I do not
for one moment acknowledge that he was, in planning terms the
result would have been no different."
As to the remainder of the appeal, the Court noted that:
"...at the heart of this appeal lies the proper planning approach
to the development which has taken place and whether that
development constituted an exception justifying permission
despite the policies inherent in the Green Belt concept.
[Those policies are:]
'The general policies controlling development in the countryside
apply with equal force in green belts but there is, in addition,
a general presumption against inappropriate development within
them.
... Inside a Green Belt, approval should not be given, except in
very special circumstances, for the construction of new buildings
or for the change of use of existing buildings for purposes other
than agriculture and forestry, outdoor sport, cemeteries,
institutions standing in extensive grounds, or other uses
appropriate to a rural area'.
I pause to note that ... in the report of the appellant's
expert to the inspector, it was made abundantly plain that
the ultimate intention here was to convert this oast house
to a private dwelling. ...
In my view, the photographs demonstrate plainly that this oast
house was indeed a building which had become so derelict that it
could only be brought back into use by complete or substantial
reconstruction. That brings us back to the point ... as to
whether this was indeed a new building operation or something
less than that. ... How did the inspector approach the facts of
this case? First, he reminded himself of the policy
considerations ... The inspector went on to deal with the
precedent, and acknowledged that if planning permission were
granted here it might create an undesirable precedent rendering
the refusal of similar applications in the future undesirable
from the point of view of the planning authority. The inspector
did not forget that there was local support for the development
and then finally he commented ... upon the ultimate use to which
this oast house might well be put. ... [T]he inspector exercised
what in my view, reflecting the words of the [first instance]
judge, was no more and no less than a 'planning judgment'. He
asked himself the right question. Was there material upon which
he could provide the answer? There plainly was. Can this Court,
can the [first instance] judge, interfere with the planning
judgment? Was there any material to indicate that the inspector
misdirected himself - that he took into account material that he
was not entitled to take into account, or failed to have regard
to material to which he should have attached importance? I can
detect no affirmative answer to any of those questions, and in
agreement with the [first instance] judge I think this inspector
was not only entitled, but was right to come to the conclusion
that he did."
By letter dated 19 July 1994, the applicant applied for leave to
present a petition of appeal on a point of law to the House of Lords
from the Order of the Court of Appeal. On 26 July 1994, that
application was dismissed. On 21 July 1994 the appellant petitioned
the House of Lords directly. His petition for leave was heard on
4 October 1994 and dismissed on 13 December 1994.
COMPLAINTS
The applicant complains of a violation of Article 1 of Protocol
No. 1, claiming that the demolition of the building is excessive and
disproportionate and does not serve any legitimate policy objective of
the Government.
The applicant further complains that he was deprived of the right
to a fair and impartial hearing to determine his civil rights, the
inspector being a salaried civil servant employed by the Secretary of
State's Department. He claims that because the determination of his
case depended predominantly on factual findings, namely:
(a) whether the repair and restoration had been reasonably
necessary for the purposes of agriculture within the unit of
agricultural land at the time the repair and restoration was
carried out;
(b) whether the building was by design an agricultural building;
and
(c) whether the policies relating to the countryside relate to
conversion of agricultural buildings and not restoration of
existing buildings where no change of use is before the
inspector,
the availability of an appeal from the decision of the inspector was
insufficient to meet the requirements of Article 6 of the Convention.
THE LAW
1. The applicant complains that the requirement that he demolish
part of the oast house which he built without planning permission
serves no legitimate purpose and is disproportionate within the meaning
of Article 1 of Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 (P1-1) 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 notes that the aim of the enforcement notice which
was served on the applicant was to limit the use of the property to
that which was permitted under domestic law. There must, accordingly,
be some doubt as to whether the applicant's right to the peaceful
enjoyment of his possessions has been interfered with. However,
assuming that there is such an interference, any limitation on use
requires justification in the public interest if it amounts to a
deprivation of possessions, or in the general interest if it
constitutes the control of property.
The Commission recalls that the Convention organs have found on
several occasions that Contracting States enjoy a wide discretion in
regulating planning matters (cf. Eur. Court H.R., Sporrong and Lönnroth
judgment of 23 September 1982, Series A no. 52, p. 26, para. 69, and,
in the context of United Kingdom legislation, Chater v. the United
Kingdom, No. 11723/85, Dec. 7.5.87, D.R. 52 p. 250, 256).
The Commission finds that the requirement on the applicant to
demolish the building works that he had carried out - despite the fact
that it may involve some considerable expenditure - does not amount to
a deprivation of possessions, but a control of the use of property.
Accordingly, the Commission must supervise the lawfulness,
purpose and proportionality of the restrictions (cf, for example, Eur.
Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no.
163, pp. 17 -18, paras. 56-64). The Commission must determine whether,
whilst recognising the wide margin of appreciation afforded to States
in planning matters, a fair balance was struck between the general
interest of the community and the protection of the individual's
fundamental rights (cf. Chater v. the United Kingdom, No. 11723/85,
referred to above).
The Commission accepts that planning controls are necessary and
desirable in modern society in order to preserve and improve town and
country landscapes. The applicant does not regard the issue, service
and enforcement of the enforcement notice as in any way unlawful. The
Commission finds that the lawfulness and purpose of the interference
are established.
As to proportionality, the Commission would first note that, as
a general rule, the rights secured by Article 1 of Protocol No. 1
(P1-1) cannot be invoked in order to extend property rights in domestic
law by requiring planning permission for purposes which have never been
permitted (cf. Bryan v. the United Kingdom, Dec. 14.10.93). It notes
that the inspector who held the enquiry into the enforcement notice
considered it in some detail and determined that the restoration works,
under planning law, constituted the construction of a new building with
no specific use. He concluded that planning permission was required
and had not been granted. In deciding not to deem planning permission
granted for the purposes of overturning the enforcement notice, the
inspector noted that the buildings were within the Green Belt, an Area
of Outstanding Natural Beauty and a Special Landscape Area. Although
he did not consider that the building works had spoiled the natural
landscape and indeed considered that they had effected some visual
improvement, he took into account other factors including the policy
of planning restraint in the area and the need to preserve that policy
except in very special circumstances.
The applicant chose to ignore the Council's advice given in 1989,
that the restoration of the oast would be viewed as "development" and
would therefore require planning permission. His contention that it
did not require planning permission because it was an agricultural
building was, by implication, not accepted by the inspector who granted
planning permission rather than allowing the applicant's ground (b)
appeal against the first enforcement notice. The applicant cannot
therefore contend that his subsequent development of the oast was done
under a misapprehension as to planning requirements.
The inspector permitted an extension of the period permitted for
demolition of the buildings as he considered "it reasonable, given the
extent of the works to be carried out and the desirability of salvaging
materials".
The fact that this case involved the development and restoration
of a ruined old building does not in the Commission's view mean that
it should be treated in a different way from any other building work
that is controlled by planning legislation. Nor can subjective factors
such as the fact that the oast has been restored in an attractive way
influence the Commission's approach. The Commission must determine
whether, in the case before it, the control of use struck a fair
balance between the conflicting interests. In doing so it recognises
the considerable consequences of the decision for the applicant.
The Commission notes that the High Court considered the
applicant's complaints about the inspector's decision, and found that
he "attached more weight to the policies of restraint" than to
questions of whether the applicant's case would be used as a precedent
for other development in the future. The Court of Appeal noted that
the applicant's expert had "made abundantly plain that the ultimate
intention here was to convert this oast house to a private dwelling".
In the light of the balancing exercise undertaken by the
inspector, the review of that exercise carried out by the High Court
and the Court of Appeal, and the discretion accorded to the domestic
authorities in this type of case, the Commission finds that a fair
balance has been struck between the applicant's interests and the
general interest.
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 complains that he was deprived of his right to an
independent and impartial tribunal in the determination of his appeal
against the second enforcement notice, in violation of Article 6
para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Commission first notes that the proceedings in the present
case involved the determination of the applicant's "civil rights" (cf.
Eur. Court H.R., Bryan judgment of 22 November 1995, Series A no. 335,
para. 31 "Bryan judgment").
If the proceedings before the domestic authorities and courts are
to satisfy the requirements of Article 6 (Art. 6) of the Convention,
either the adjudicatory body itself must comply with those
requirements, or the proceedings before that body must be "subject to
subsequent control by a judicial body that has full jurisdiction and
does provide the guarantees of Article 6 para. 1 (Art. 6-1) "(Bryan
judgment, para. 40 with further reference).
As to the inspector in the present case, the Commission recalls
that in the Bryan judgment, the European Court of Human Rights held
that the inspector in the proceedings there lacked the requisite
appearance of independence and impartiality and so could not be
considered to fulfil the requirements of Article 6 (Art. 6) of the
Convention (para. 38). There is no reason to consider the position to
be different in the present case.
Accordingly, the Commission must decide whether the review of the
inspector's decision by the High Court and the Court of Appeal
satisfied the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention as far as the scope of its jurisdiction is concerned.
The Commission recalls that in the Bryan judgment, the European
Court of Human Rights held as follows:
"44. The Court notes that the appeal to the High Court, being on
"points of law", was not capable of embracing all aspects of the
Inspector's decision concerning the enforcement notice served on
Mr. Bryan. In particular, as is not infrequently the case in
relation to administrative-law appeals in the Council of Europe
member States, there was no rehearing as such of the original
complaints submitted to the inspector; the High Court could not
substitute its own decision on the merits for that of the
inspector; and its jurisdiction over the facts was limited ...
However, apart from the classic grounds of unlawfulness under
English law (going to such issues as fairness, procedural
propriety, independence and impartiality), the inspector's
decision could have been quashed by the High Court if it had been
made by reference to irrelevant factors or without regard to
relevant factors; or if the evidence relied on by the inspector
was not capable of supporting a finding of fact; or if the
decision was based on an inference from facts which was perverse
or irrational in the sense that no inspector properly directing
himself would have drawn such an inference ... .
45. Furthermore, in assessing the sufficiency of the review
available to Mr. Bryan on appeal to the High Court, it is
necessary to have regard to matters such as the subject-matter
of the decision appealed against, the manner in which that
decision was arrived at, and the content of the dispute,
including the desired and actual grounds of appeal.
46. In this connection the Court would once more refer to the
uncontested safeguards attending the procedure before the
Inspector: the quasi-judicial character of the decision-making
process; the duty incumbent on each inspector to exercise
independent judgment; the requirement that inspectors must not
be subject to any improper influence; the stated mission of the
Inspectorate to uphold the principles of openness, fairness and
impartiality ... . Further, any alleged shortcoming in relation
to these safeguards could have been subject to review by the
High Court.
47. In the present case there was no dispute as to the primary
facts. Nor was any challenge made at the hearing in the High
Court to the factual inferences drawn by the Inspector, following
the abandonment by the applicant of his objection to the
Inspector's reasoning under ground (b) ... . The High Court had
jurisdiction to entertain the remaining grounds of the
applicant's appeal, and his submissions were adequately dealt
with point by point ... . These submissions, as the Commission
noted, went essentially to questions involving "a panoply of
policy matters such as development plans, and the fact that the
property was situated in a green belt and a Conservation Area".
Furthermore, even if the applicant had sought to pursue his
appeal under ground (b), the Court notes that, while the High
Court could not have substituted its own findings of fact for
those of the Inspector, it would have had the power to satisfy
itself that the Inspector's findings of fact or the inferences
based on them were neither perverse nor irrational ... Such an
approach by an appeal tribunal on questions of fact can
reasonably be expected in specialised areas of the law such as
the one at issue, particularly where the facts have already been
established in the course of a quasi-judicial procedure governed
by many of the safeguards required by Article 6 para. 1
(Art. 6-1). It is also frequently a feature in the systems of
judicial control of administrative decisions found throughout the
Council of Europe member States. Indeed, in the instant case,
the subject-matter of the contested decision by the Inspector was
a typical example of the exercise of discretionary judgment in
the regulation of citizens' conduct in the sphere of town and
country planning."
In the present case, there was a dispute as to the facts before
the inspector which was not taken up before the High Court on the
applicant's appeal - namely, the question whether the applicant had
built a new building, which required planning permission, or whether
he had merely undertaken works of improvement or maintenance, for which
no planning permission was needed. The point was raised before the
Court of Appeal, however. The Court of Appeal ruled that the point
could not be pursued before it, but nevertheless considered the
question. In the context of its comments on the applicant's (late)
challenge to the ground (b) reasoning, the Court found that the
question of whether new building work had been undertaken was a "matter
of fact and degree for the inspector to determine". These comments
could be interpreted as the Court of Appeal declining jurisdiction in
respect of a particular point (cf., Eur. Court H.R., Fischer judgment
of 26 April 1995, Series A no. 312, p. 18, para. 34). However, in the
context of its discussion of the policy implications of the case, the
Court of Appeal also found that "this was indeed a building which had
become so derelict that it could only be brought back into use by
complete or substantial reconstruction", and then went on to consider
the way the inspector had approached the question.
Accordingly, the only factual aspect of the case before the Court
of Appeal was in the event considered and rejected on its merits - that
is, the Court of Appeal did not in the end decline to deal with the
point (even though the applicant had not raised it before the High
Court) but found that the inspector was right when he decided that the
applicant had undertaken work which amounted to development and
therefore needed planning permission.
As to the remainder of the matters before the High Court and the
Court of Appeal, the Commission considers, as did the European Court
of Human Rights in its Bryan judgment (para. 47), that the applicant's
submissions were adequately dealt with point by point.
In the light of the above considerations, and the general
considerations made by the European Court of Human Rights in the Bryan
judgment, in particular the subject-matter of the decision appealed
against, the manner in which that decision was arrived at, and the
content of the dispute, including the actual and desired grounds of
appeal, the Commission finds that the scope of review of the High Court
and the Court of Appeal was sufficient to comply with 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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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