AS TO THE ADMISSIBILITY OF
Application No. 14265/88
by John Barry PINCOCK
against the United Kingdom
The European Commission of Human Rights sitting in private on
19 January 1989, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
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 23 June 1988
by John Barr PINCOCK against the United Kingdom and registered on
3 October 1988 under file No. 14265/88;
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 a British citizen born in 1944 and resident
in St. Helens, Merseyside. The facts as submitted by the applicant
may be summarised as follows.
On 2 January 1983, the applicant's father died, leaving to the
applicant his terraced house at 3 Edgar Street, St. Helens. The
applicant sought to sell the house, which was in good condition but
discovered that 3 private purchasers lost interest since the house was
in an area in respect of which the local authority (St. Helens Borough
Local Council) had had plans to build new roads since the 1960's.
Plans in the Planning Department of the local authority indicated
various possible road schemes, one of which ran across the property
and three of which were in close proximity. No decision was taken for
many years in relation to the road scheme apparently as no money was
available to fund the re-development.
The applicant alleges that as a result of this situation
properties in the area were left unsold and unoccupied, subject to
vandalism and dilapidation.
The local authority eventually decided to implement its road
development plans and on 11 July 1988 issued a Compulsory Purchase
Order for the area including 3 Edgar Street for the purpose of
building a link road to the motorway to bypass the hospital and
residential housing in the area. It also classified the houses in the
area as unfit for human habitation and in its report on 3 Edgar Street
stated that the property had not been externally well-maintained and
suffered from perished brick work and rotten woodwork.
The applicant disagreed with this description and applied to
the Secretary of State on 26 August 1988 for a payment for good
maintenance, submitting inter alia that any repairs needed were
minor. No reply has yet been received to this application.
Since the applicant did not occupy the premises, he will be
entitled under the compulsory purchase legislation only to receive the
site value of the property which he estimates at £100-150. If not
subject to the order, the applicant considers the property would be
worth £15-20,000. If he had occupied the premises, he would have been
eligible to claim supplementary compensation plus an amount for
disturbance.
COMPLAINTS
The applicant complains that policy of the local authority has
interfered with his right to peaceful enjoyment of his possessions
contrary to Article 1 of Protocol No. 1. As a result of their delay
and indecision he was unable to sell the property for its market value
and will now receive little by way of compensation for the compulsory
purchase. He also alleges that there is no legal remedy available to
him in respect of his complaints.
THE LAW
1. The applicant complains that he was unable to sell his
father's house prior to the compulsory purchase order and that
subsequent to the order, he will receive an inadequate amount of
compensation. He invokes Article 1 of Protocol No. 1 (P1-1) 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."
Insofar as the applicant complains of being unable to sell his
father's property, the Commission recalls that no prohibition on sale
was in force and that there were no formal plans or decisions in
existence with reference to development in the area in which the
property was situated. The Commission notes that the local authority
had been considering the possibility of a road scheme since the 1960's
and that various possibilities in different locations had been drawn
up in the Planning Department.
The Commission finds that in the circumstances of the case
these informal and internal planning discussions cannot be held to
constitute an interference with the applicant's peaceful enjoyment of
his property within the meaning of the first sentence of Article 1 of
Protocol No. 1 (P1-1) or a control of the use of property within the meaning
of the second paragraph of that article.
The applicant has also complained that following the
compulsory purchase order, he will receive an inadequate amount of
compensation, since as an owner not in occupation he will only be
entitled to site value.
The Commission finds that the compulsory purchase order
constitutes a deprivation of possessions within the meaning of the
second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1).
The Commission however finds no evidence to suggest that the
purchase is not being carried out subject to the conditions provided
for by law and, as regards the general principles of international
law, the Commission recalls that this condition does not apply to a
taking by a State of the property of its own nationals (Eur. Court
H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p.
50, para. 119). The Commission must therefore determine whether on
the facts of this particular case the applicant is being deprived of
his property in the public interest. The Commission recalls that
because of their direct knowledge of their society and needs, the
national authorities are in principle better placed to appreciate what
is in "the public interest". In their assessment in this respect, the
national authorities enjoy a margin of appreciation. The Commission
notes that the compulsory purchase orders were implemented in order to
build a link road to a motorway to by-pass the hospital and
residential housing in that area. The Commission is satisfied in
these circumstances that the compulsory purchase measure pursues a
legitimate aim in the public interest of improving the public highway
system and relieving residential areas of heavy traffic.
The case-law of the Commission and the Court establishes 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. The Court has also stated that this requires that a fair
balance be struck between the demands of public interest of the
community and the requirements of the protection of the individual's
fundamental rights. This balance will not be found where the person
concerned has to bear an individual and excessive burden (see e.g.
Lithgow and Others judgment, loc. cit., p. 50, para. 120).
Compensation terms are material to the assessment whether such
a fair balance has been struck and whether or not a disproportionate
burden has been imposed on the person deprived of his property. The
taking of property without payment of an amount reasonably related to
its value would normally constitute disproportionate interference
which could not be considered justifiable under Article 1 of Protocol
No. 1 (P1-1) (Lithgow and Others judgment, loc. cit., p. 50, para. 120).
The applicant complains that he will only receive site value
for his property instead of the £15-20,000 which he estimates is its
real value.
The Commission recalls in this respect however that the
applicant's property has been declared as unfit for human habitation
and finds that the applicant has not substantiated his claim as to the
estimate value of the property or established that the site value will
not reflect the value of the property. The Commission also notes that
if the applicant had occupied the premises, he would have been
eligible for supplementary compensation including disturbance. The
Commission finds that the policy of compensating occupiers of property
more generously than non-occupying owners is not in principle contrary
to Article 1 of Protocol No. 1 (P1-1) and falls within the Contracting
States' margin of appreciation. The Commission also notes that the
applicant has the possibility of applying to the Secretary of State
for additional compensation for previous maintenance of the property.
In light of these circumstances, the Commission finds that the
terms of the compulsory purchase do not infringe the principle of
proportionality. Consequently, the compulsory purchase is justified
under the second sentence of the first paragraph of Article 1 of
Protocol No. 1 (P1-1).
It follows that this part of the application must be rejected
as manifestly ill-founded within the meaning of Article 1 of Protocol
No. 1 (P1-1).
2. The applicant also complains that he does not have an
effective remedy in respect of his complaints.
Article 13 (Art. 13) of the Convention provides:
"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."
Article 13 (Art. 13) does not guarantee a remedy whereby a law as such
can be challenged before a domestic organ (see Eur. Court H.R., James
and Others judgment of 21 February 1986, Series A no. 98, p. 47, para.
85). Moreover, Article 13 (Art. 13) does not require a remedy under domestic
law in respect of any alleged violation of the Convention. It only
applies if the individual can be said to have an "arguable claim" of a
violation of the Convention (Eur. Court H.R., Boyle and Rice judgment
of 27 April 1988, Series A no. 131, para. 52).
Insofar as the applicant complains of the effect of the
compulsory purchase legislation, it follows that Article 13 (Art. 13) does not
guarantee a remedy for such complaints. Insofar as the applicant
complains of being unable to sell his property as a result of the
local authority's policy, the Commission recalls that it has found
above that the facts of the case failed to disclose any interference
with the applicant's right to peaceful enjoyment of his possessions
or any control of the use of these possessions. The Commission also
finds on an examination of the complaint as it has been submitted that
the applicant cannot be said to have an "arguable claim" of a
violation of Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application must be dismissed as
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)