AS TO THE ADMISSIBILITY OF
Application No. 13135/87
by S. and Others
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 April 1987 by S. and
Others against the United Kingdom and registered on 11 August 1987 under file
No. 13135/87;
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 first applicant, S. is a British citizen born in 1911 and
trustee of the Discretionary Trust Fund, which owns the K. Estate.
The second applicant, F., is a British citizen born in 1970 and is a
beneficiary of the trust. The third applicant, S., a British citizen
born in 1936, is the mother and curator-at-law of the second
applicant. The fourth applicant, T., is a British citizen born in
1966 and is a beneficiary of the trust. The fifth applicant, R., is a
British citizen born in 1968 and is also a beneficiary of the trust.
The applicants all reside at C. Estate, S., and are represented before
the Commission by Donald Ross MacDonald, a solicitor practising in
Glasgow.
The facts as submitted by the applicants may be summarised as
follows.
The K. estate is a residential, agricultural and sporting
estate in the Highlands of Scotland; about 10 miles long and 2 miles
wide. It comprises K. House and grounds, B. and L. Farms and hill
ground used for stock grazing and sporting.
Part of the land belonging to the trust (75 acres out of an
estate of 10,000 acres) was acquired by the Secretary of State for
Scotland under two compulsory purchase orders in order to carry out
re-alignment of the A9 trunk road from P. to I. This land was vested
in the Secretary of State by General Vesting Declaration on 9 and 16
April 1979.
Pursuant to the purchase, the Highland Regional Authority have
constructed a new section of the A9, with associated link roads,
bridges, accommodation roads and intersections. Both sides of the new
roads have been fenced in the course of the works.
The applicants and the Secretary of State's valuers failed to
reach agreement as to the compensation payable, and the applicants
applied to the Lands Tribunal for Scotland to ascertain the amount
of compensation.
Two of the central issues brought before the tribunal
concerned, firstly, compensation for cost of maintaining and replacing
in future the accommodation works and the fencing erected along the
new roads running through the estate, and, secondly, compensation for
loss of amenity to the estate from the existence of the new roads.
The applicants claimed £335,696 in compensation, £147,242 of which
related to costs of future maintenance.
The tribunal consisting of Lord Elliott and Mr. T. Finlayson
Frics, heard evidence on 3-14 February 1986, on 16 April 1986 and
made inspection of the relevant portions of the estate on 17-18 April
1986. The applicant was represented by a Q.C. and junior counsel as
was the Secretary of State for Scotland as the acquiring authority.
Both parties called expert witnesses.
The statutory provisions governing compensation in issue
before the tribunal were as follows:
Section 61 of the Land Clauses (Consolidation) (Scotland)
Act 1845:
"In estimating the purchase money or compensation to be
paid by the promoters of the undertaking, in any of the
cases aforesaid, regard shall be had not only to the value
of the land to be purchased or taken by the promoters of
the undertaking, but also to the damage, if any, to be
sustained by the owner of the land by reason of the
severing of the lands taken from the other lands of such
owner or otherwise injuriously affecting such lands by
the exercise of the powers of this or the special Act,
or any other Act incorporated therewith."
This section is supplemented by Section 41 of the Land
Compensation (Scotland) Act 1973 which includes damage due to the
subsequent use of the land acquired.
Section 2(2) of the Acquisition of Land (Assessment of
Compensation) Act 1919 introduced under "Rule 2" the open market
criterion in place of "value to owner" when assessing the value of
land. It also applies when assessing the depreciation in value of
retained land. Section 2(6) ("Rule 6") however provided that "the
provisions of "Rule 2" shall not affect the assessment of compensation
for disturbance or any other matter not based directly on the value of
land". So the latter conferred no new rights but merely confirmed the
continuance of pre-existing rights to claim for "disturbance and other
matters" of consequential loss.
The applicants advocated to the tribunal compensation on the
basis of an inflation-proofed "sinking fund" which would provide
income to deal with repairs as and when they occurred in the future.
They advocated that "Rule 6" rather than "Rule 2" of the relevant
legislation was applicable in their case, namely that compensation
should not be calculated with reference to market value. On
6 November 1986, however, the tribunal decided that the compensation
for future maintenance should be calculated by reference to the
overall diminution in the market value of the retained land, taking
into account the likely future expenditure involved as a guide to the
amount by which notional purchasers would be likely to lower their
offers. They found that future maintenance fell under the heading of
injurious affection of "Rule 2" rather than consequential loss of
"Rule 6". In assessing the depreciation of value the tribunal
examined each item of claim related to the burden of future
maintenance and accepted the valuation approach of the district valuer
giving evidence for the Secretary of State, who calculated
compensation according to the actual prime costs of the accommodation
works. The tribunal noted that this approach had already been
regarded as acceptable by all other owners and surveyors who had
settled claims concerning other stretches of the new A9. The
tribunal awarded the sum of £38,100 to the applicants in respect of
this item of claim. The tribunal also found that there was no loss of
general amenity to the estate. The tribunal had inspected the estate
and found that, having regard to the effect which the old A9 had on
the property and the problems which improving it would have posed, the
building of the new A9 caused no general loss of amenity to the estate
as a whole. They did however award sums for loss of amenity in
respect of certain specified properties on the estate which they did
find to be adversely affected by the site of the new road. In total,
the applicants were awarded £59,830 compensation in respect of their
contested items of claim. Compensation in respect of certain other
items of claim apparently had been agreed by the parties before the
hearing and these items were not considered by the tribunal. While
appeal lies to the Court of Session on points of law, the applicants
contend that the disputed determinations were determinations of fact
against which no appeal is possible.
COMPLAINTS
1. The applicants complain of a violation of Article 1 of
Protocol No. 1 (P1-1) to the Convention.
The applicants complain that the tribunal's assessment of
compensation as depreciation in the market value of land at a
particular date makes no allowance for inflation in the cost of future
repair-works and also results in liability to capital gains tax. The
method chosen by the tribunal is alleged by the applicants to be
arbitrary and illogical and fails to make provision or take into
account the likely future repair-needs. The applicants also submit
that there is a substantial physical difference caused to the estate
by the construction of the new roads and that the finding of the
tribunal that there was no general loss of amenity is a substantial
factual error.
2. The applicants complain that the absence of a possibility to
appeal is a violation of Article 6 (Art. 6) of the Convention. The applicants
also complain that the absence of such appeal and of an effective remedy for
their complaints constitutes a violation of Article 13 (Art. 13) of the
Convention.
THE LAW
1. The applicants complain that they have been awarded an
arbitrary and inadequate amount of compensation by the Lands Tribunal
in respect of the compulsory purchase of part of their land. They
allege a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention
which in the first paragraph 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 Commission finds that the applicants were deprived of
their possessions within the meaning of the second sentence of
paragraph 1. The Commission finds no evidence to suggest that the
purchase was not 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 applicants were deprived of their 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 carry out
repairs to and realignment of a major trunk road. The Commission is
satisfied that in these circumstances the compulsory purchase measures
pursued a legitimate aim in the public interest of maintaining and
improving public highways.
The case-law of the Commission and 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 Commission finds that this principle is also applicable in respect of
compensation for other pecuniary loss or burdens imposed as a result
of compulsory purchase measures.
The applicants complain in this respect that the tribunal's
assessment of compensation was inadequate, illogical and arbitrary.
They had argued before the tribunal that compensation in respect of
their obligation in future to maintain and repair fencing should have
been provided on the basis of an inflation-proofed sinking fund which
would provide income to pay for repairs as they occurred. The
tribunal however had chosen to assess compensation in reference to the
loss of market value suffered by the estate, taking into account the
likely future expenditure involved in maintenance of fencing and other
works as a guide to the amount by which notional purchasers would be
likely to reduce their offers. Consequently, the tribunal awarded
£38,100 in respect of this item of compensation instead of the
£147,242 which the applicants claimed. The applicants complain that
this method of assessment is not only inadequate and arbitrary, but
also does not take into account inflation and makes them liable to
capital gains tax. The applicants further contend that the tribunal
erred in finding no general loss of amenity to the estate and in
awarding no compensation for this.
The Commission notes that the tribunal considered the
applicants' suggested method of compensation but decided instead to
use estimated costs of repair and renewal as a reasonable yardstick to
the depreciation in value of the land taking into account the actual
prime cost of the accommodation works in question, an approach
accepted by other owners affected by the new A9. The Commission does
not find that this method of assessment is in principle contrary to
Article 1 of Protocol No. 1 (P1-1). The Commission also recalls that absence
of any allowance for inflation, and incidence to capital gains tax were found
by the Court in the Lithgow case (Lithgow and Others judgment, loc. cit. pp.
58-61, paras. 144-147 and 156) to fall within the margin of appreciation
accorded to High Contracting Parties. As regards the tribunal's decision not
to award any compensation at all in respect of general loss of amenity to the
estate, the Commission notes that the tribunal had itself inspected the estate
and had found that, having regard to the problems existing in respect of the
old A9 which had crossed the estate, no general loss of amenity had been
suffered by the estate as a result of the new A9. Moreover the tribunal did
award various sums in compensation in respect of parts of the estate which
could be said to have been made less attractive by the new works. Having
examined the facts of the case, the Commission finds that the terms of the
compulsory purchase of the applicants' property did not infringe the principle
of proportionality.
Consequently, the taking of the applicants' property was
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 27 para. 2 (Art. 27-2)
of the Convention.
2. The applicants complain that they are unable to appeal against
the decision of the Lands Tribunal and invoke Articles 6 and 13 (Art. 6,
Art. 13) of the Convention.
The Commission notes that the Lands Tribunal is a judicial
body set up by statute with jurisdiction in specified areas of dispute
in land valuation.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention does not require the Contracting States to set up courts of
appeal and that the case-law of the Court and the Commission
establishes that Article 6 (Art. 6-1) does not guarantee an appeal from the
judgments of courts (see e.g. Eur. Court H.R., Delcourt judgment of
17 January 1970, Series A no. 11, p. 13, para. 25). It follows that
the applicants' complaint of an inability to appeal must be dismissed
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention
Article 13 (Art. 13) of the Convention guarantees a right to a remedy
before a national authority when an individual has an arguable claim of a
violation of the Convention. When the alleged violation concerns the decision
of a court the right to a remedy would appear to require a remedy before a
higher court. However, in light of the established case-law concerning Article
6 (Art. 6) of the Convention as stated above and Article 2 of Protocol No. 7
(P7-2) which expressly accords the right of review by a higher tribunal in
criminal matters, Article 13 (Art. 13) cannot be interpreted as according such
a right (see e.g. No. 11508/85, Dec. 17.7.86, to be published in D.R.).
Consequently, this provision cannot be relied on as affording a right of appeal
from an inferior court to a superior court.
The Commission notes that the applicants' complaint of a
violation of Article 1 of Protocol No. 1 (P1-1) arises from the decision of
the Lands Tribunal of Scotland. The Commission accordingly finds that
their complaint of being unable to appeal against this decision
discloses no appearance of a violation of the Article 13 (Art. 13) of the
Convention. It follows that this complaint 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.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)