Information Note on the Court’s case-law No. 81
December 2005
SCEA Ferme de Fresnoy v. France (dec.) - 61093/00
Decision 1.12.2005 [Section I]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Constraints for nearby properties arising from the listing of a historic building: inadmissible
The applicant company runs a farm comprising various buildings for agricultural use, including two particularly old constructions listed by the authorities as historical monuments because of their public‑interest value as examples of cultural heritage. The applicant envisaged erecting other agricultural facilities in the vicinity of those that had been listed and applied for building and demolition permits. Refusals to grant the permits were annulled by a court, with the exception of two decisions that were not challenged by the applicant. Some of the permits carried conditions relating to the preservation of the aesthetic appearance of the area around the listed buildings. Development in the vicinity of the two listed buildings was restricted as a result of the listing. Alleging that the listing of the buildings had prevented it from developing its agricultural infrastructures, the applicant company sought compensation but was unsuccessful. The court pointed out that only two units of the farm buildings had been listed, representing 4% of the total building surface area, and that the applicant had complained not of a loss arising merely from the presence of the two listed buildings but of a loss caused by development restrictions in the surrounding area, that is to say a loss which was not provided for by law. Whilst the Planning Code did provide for the protection of the area within view of a listed building (any demolition or construction around a listed building remaining subject to the prior approval of the French national-heritage architect), the “easement pertaining to development in the vicinity of a listed building” did not give rise to any compensation. The court also observed that a permit had been granted to erect a storage building, subject to approval of the plan by the French national-heritage architect.
Inadmissible under Article 1 of Protocol No. 1 – There had been interference with the applicant’s right to the peaceful enjoyment of its possessions in the vicinity of the listed buildings. The easement on the surrounding land had not deprived the applicant of its property but had subjected the use of that land to certain constraints, such as the requirement of prior authorisation in respect of any new construction or demolition. The interference therefore constituted a measure controlling the property’s use. The purpose of the listing process, which was provided for by law, was to preserve historic buildings which had “a public-interest value in relation to the history of art, in view of the scarcity and authenticity of [their] architecture”. The impugned interference thus had the purpose of preserving the quality of the environment around protected national-heritage buildings, by regulating construction or other work carried out in the vicinity. That was a legitimate aim in terms of the protection of the country’s cultural heritage. The restriction of the applicant’s right to the peaceful enjoyment of its possessions could not be criticised per se, having regard in particular to the legitimate aim and to the authorised margin of appreciation, as the applicant was simply required to obtain the approval of the French national-heritage architect whenever it wished to carry out construction, demolition or alteration work in the vicinity of the listed buildings. In addition, out of six applications for building or demolition permits in respect of constructions located within view of the listed buildings, only two had given rise to refusals, and even those had not been tested before the courts. Where the planning permission remained conditional, the conditions in question had not been particularly onerous. Moreover, there had been various contacts with the competent authorities and on-site meetings with a view to reconciling the operational and site-related constraints, but the applicant company had not accepted any of the solutions proposed. In short, the interference had not resulted in placing an excessive burden on the applicant such that the impugned measure was disproportionate to the legitimate aim pursued: manifestly ill-founded.
Inadmissible under Article 14 in conjunction with Article 1 of Protocol No. 1 – The applicant had contended that the Act of 31 December 1913 created an unjustified discrimination between the owners of listed buildings, who were entitled to compensation, and those of neighbouring properties who were not so entitled. However, the two situations were different. Owners of listed buildings were not in the same position as owners of neighbouring properties. The former were subject to the encumbrances or obligations arising from the listing of their property, whilst the latter, whose property was not listed, were subject only to easements restricting the use of their property. Under the applicable legislation, which thus made a justified distinction, the two situations entailed neither the same rights nor the same obligations. The simple fact that the applicant company found itself in both situations simultaneously could not in itself justify the application of any special regime or treatment: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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