AS TO THE ADMISSIBILITY OF
Application No. 20490/92
by ISKCON and 8 Others
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 8 March 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
G.B. REFFI
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 24 April 1992 by
ISKCON and 8 Others against the United Kingdom and registered on
13 August 1992 under file No. 20490/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government
on 3 June 1993 and the observations in reply submitted by the
applicant on 13 September 1993;
- the further information submitted by the applicants on
16 February and 7 March 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are the International Society for Krishna
Consciousness Ltd. ("ISKCON") and eight individuals who are members
and, in part, officers of ISKCON. The applicants are represented by Mr.
S. Ruparell, solicitor, of Messrs. Singh and Ruparell, solicitors,
London. The facts of the case, as submitted by the parties, may be
summarised as follows.
ISKCON acquired a 19th century manor in 1973. The local
authority had confirmed, by letter of 27 March 1973, that "on the
information available the last use of the premises, namely a nurses'
residential college, falls squarely within the same use class as a
residential theological college in connection with the promotion of the
religion of Krishna Consciousness. In the circumstances, planning
permission is not required. Although the previous use was largely
residential, I gather that it was also partly educational and this
appears to be the situation with the use now proposed".
On 25 January 1983 ISKCON entered into an agreement ("the
Section 52 Agreement") with the local authority that, inter alia,
ISKCON would not permit more than 1,000 persons to visit the manor on
any one day except with the consent of the council; the council
granted consent for more than 1,000 persons to be present on six days
in the year (festival days), subject to various conditions. The
agreement referred to a previous enforcement notice which had been
served in 1981 and against which ISKCON had appealed, and was expressed
to be without prejudice to the council's rights to serve further
enforcement notices. The council withdrew the existing enforcement
notice, and ISKCON agreed not to make any claim for costs in the
appeal.
On 8 January 1987 the local authority served an enforcement
notice on ISKCON alleging that, by using the land for "the purposes of
a residential educational college and a religious community and public
worship and public entertainment in connection with religious
festivals" ISKCON had materially changed the use of the land, and that
this material change of use amounted to a breach of planning control.
In the annex to the enforcement notice the local authority referred to
the Section 52 Agreement, and alleged that, following repeated
complaints from the local residents, the local authority had been made
aware that the number of persons attending on non-festival days was
increasing and had exceeded the 1,000 person limit.
An Inspector held an inquiry into appeals by ISKCON against the
enforcement notice (and related matters). The inquiry was held on
9 November 1987, 21 November 1988, 29 November to 2 December,
6 to 9 December, 14 and 19 to 21 December 1988. In the 136 page report
of the inquiry the Inspector found, as matters of fact, as follows:
"B. Religious and Social
1. The Krishna Consciousness movement, a traditionalist branch
of the Hindu faith, was founded by Srila Prabhupada, a sanskrit
scholar who emigrated to New York from India, in 1966. Its aim
is to stimulate interest and convert people world-wide to the
spiritual principles of the Vedic culture of India as expounded
in the scriptures of the Bhagavad Gita (The Bible of India).
There are now 200 ISKCON centres throughout the world.
2. Devotees of Krishna Consciousness regard it not just as a
religion, but as a whole way of life, constantly developing their
love of god by rendering devotional service ("Shakti-Yoga").
This includes the purification of the consciousness by constant
chanting of the Holy Names of God. (The Hare Krishna Mantra).
3. Other forms of devotion regularly practised are the study of
the scriptures, guided by priests and teachers, the performance
of "puja" or acts of devotion to the deities at a shrine or at
home, the offering of sanctified food to the deity before eating,
"prasad", and pilgrimages to a shrine or "tirtha" on holy days
and festivals.
4. On these occasions it is customary to take "Darshan" or
audience of the deities and offer silent private prayers as well
as participating in the services performed by the priest,
"Arati", and taking part in congregational chanting.
5. Any Hindu shrine contains deities which are regarded as gods
themselves in the form of wood or stone. The deities at the
Manor are of marble statues, worthy of the highest veneration.
6. Hindu tradition demands that they be moved only to achieve
significantly better facilities for worship within their existing
"dharma" or area over which they have exercised their influence.
Any other move would be an act of desecration.
7. The first ISKCON shrine was set up in London in 1969 in a
rented flat in Bury Place, and deities were installed there. In
1979, following enforcement proceedings and subsequent
litigation, that temple and the deities were moved to premises
in Soho Street, London, where ISKCON still have a temple with
deities and resident priests, and a similar type of worship to
that at the Manor.
8. Devotees of Krishna Consciousness are required to observe the
"regulative principles", strict rules as to diet and temperance.
Single persons live a monastic existence. The movement has a
strong social conscience and tradition of counselling the
distressed and afflicted.
9. The current Hindu population of Britain is estimated at
750,000 with between 120,000 and 200,000 in North London, 55,000
of these being within Brent and Harrow and forming the main
catchment area for the temple congregations.
10. There are few Hindu temples in London, compared with
Birmingham, which has 4 to serve a population of 40,000. Those
in north-west London serve mainly the Swaminarayan faith, whose
followers do not worship Radha and Krishna.
C. The Function of the Manor
1. The Manor is said to be the only "Math", or training college
for Hindu priests in the United Kingdom. It welcomed as students
anyone who wished to devote all or part of their lives to the
understanding of the faith and devotion to Krishna.
...
4. It is a "Tirtha" or place of pilgrimage. Coachloads come
from Birmingham to worship at the Manor.
...
6. The shrine is essential to the teaching of priests,
regardless of any public worship.
...
8. The following are the principal activities at the Manor:
a. A residence (Ashram) for between 40 and 50 single
devotees, priests and novices.
b. A centre for the training of full time Hindu priests
and missionaries.
...
i. Devotional services in the temple between 0430 and 2115
hrs. daily, with extended programmes on Sundays, to which
all members of the public are free to come.
...
l. The conduct of one or two day festivals on the 3 most
important festivals in the Hindu calendar, namely Ramnavani
(April), Janmasthnmi (July-September), Diwali (October-
November), and other minor festivals on less important holy
days."
In Section D of his Report the Inspector set out the history of
the events leading up to the service of the enforcement notice, the
material part of which may be summarised as follows:
(1) In 1974 a neighbouring resident complained about large numbers
of people living at the Manor, and services being advertised. A
newspaper article in the summer of 1974 referred to 1,000 people
celebrating Krishna's birthday at the Manor. A weekend festival in
August 1975 attracted 5,000 visitors on each day and further festivals
in November 1975 and August 1976 attracted not more than 2,500 people
in any one day. Parking on neighbouring fields ameliorated adverse
effects on he village.
(2) On 30 May 1978 planning permission was granted for the
construction of a car park with 127 spaces. The application had been
made at the request of the planning authority. The work was completed
in 1979 at a cost of £20,000.
(3) A newspaper article in August 1979 reported a forecasted
attendance of 10,000 people for the Janmasthami festival. A resident
reported 600-800 cars parked in the fields and 11 coaches being parked
in lay-byes in the area on Sunday 12 August.
(4) The 1980 Janmasthami festival was held on Saturday/Sunday
31 August after notification had been given that it would be on the
Sunday and Monday. It was estimated that 14,000 people had attended
each day and 15,000 attended a separate evening festival on Tuesday
2 September, when traffic blocked the village for several hours. By
1980 the Manor had become generally known as "The Temple". Counts
carried out by Mr Jeffers in September 1980 indicated that on 3
successive Sundays between 498 and 760 vehicles entered the Manor with
a flow of through traffic through the village of between 841 and 1,161
vehicles. in the same period. At the same time between 1,127 and 1,502
persons were counted into the Manor. Further counts on 4 Sundays in
October 1980 showed between 587 and 1,119 persons entering the Manor.
(5) In July 1984 ISKCON sold their Worcestershire property, Croome
Court, for economic reasons.
(6) A handbill inviting visitors to the Janmasthami Festival on
8 September 1985 stated that coach parties should write to the Manor
in advance. It also said that every Sunday a special Festival
programme was held from 4 pm to 9 pm featuring dramas, video shows,
lectures, children's classes. Full Prasad, Bhajans (congregational
chanting) and Arati (temple services)). It was estimated that 13,000
people attended, over 2 days.
(7) Counts carried out from September 1985 to September 1988 showed
that there have regularly been more than 1,000 visitors to the Manor
on non-festival Sundays, the average attendance being in the region of
1,500. The 1986 Janmasthami Festival attracted 1,184 vehicles on
Sunday 24 August, 682 on Monday 25 August and 1,955 on Wednesday
27 August, with visitors counted at 4,631, 2,339 and 8,781 on those 3
days. A nearby resident described the Festival as seeming to go on all
the week and having only 21/2 hours sleep on one night.
(8) Previous proposals for a residential farm community in the
Midlands and community halls in areas where the Hindu population were
concentrated, such as Brent, Southall and East London had not
materialised. Following the initial adjournment of the Inquiry into
the Enforcement Notice appeal a search was made for an alternative
temple site and that at Dagger Lane was identified. ISKCON indicated
they required a site 3 times the site of that at the Manor, and the
buildings proposed would cover about 21/2 times the floor area. The
deities would be moved to the new temple and the Manor would become
primarily a place of spiritual retreat with a shrine for the benefit
mainly of residents who would number up to 50.
In Section E of his Report the Inspector found that the main
house was a Grade II listed building (having been added to the list in
1985) and the buildings and most of the grounds were within the
Letchmore Heath Conservation Area, designated in 1969. The site was
within an extensive area of the Metropolitan Green Belt and this
notation had not changed since 1954.
Whilst stating that the legal implications of these facts were
matters for the Secretary of State, the Inspector set out in detail the
conclusions which he had drawn from the above facts. The Inspector
noted that it was quite clear that the notice was aimed at
discontinuing all festivals, and that there was no intention to include
any saving for the 6 days mentioned in the Section 52 Agreement. The
Inspector did not consider there was any necessity for it to do this.
He concluded that the enforcement notice was valid and that the appeal
failed on each of the grounds relied on by ISKCON.
As to Ground (c) (the appeal on the ground that the breach of
planning control had not taken place), the Inspector found on the
evidence that residents at the Manor lived as a community, in a regime
somewhat similar to a monastery, devoted single mindedly to the service
and promotion of their religion. The bond between all the occupants
of the Manor was the religion of Krishna Consciousness, and they worked
and ate together, and shared the house and its grounds, each resident
having only a part of a shared bedroom for his or her sole occupation.
That is communal living as the reasonable man would understand it.
As to public worship, the public were permitted to attend
services at all times. The Manor was proud to keep open house, and the
gates were locked only for a few hours during part of the night. No
visitor had to ask for any permission to enter. The services in the
temple were conducted on exactly the same basis as in an Anglican or
any other church, although there was no parish roll or register of
communicants. Members of the public were invited to celebrate
weddings, with a religious ceremony after the civil one, and this also
could be described as an element of public worship.
As to public entertainment in connection with religious
festivals, the publicity given in the past, and attractions promised
at the festivals, with references to firework displays, vegetarian
feasting, spectacular pandal performances, dances, drama and music and
video shows indicated that the visitors did indeed come not just to
worship in the temple or offer silent prayers to the deities, but also
to be entertained, albeit against a religious background. The
festivals had many of the attractions of a fête, and more besides.
As to Ground (b) (the appeal on the ground that the matters
alleged did not breach planning control), the Inspector concluded that
the primary use of the Manor was fundamentally different in many ways
from a residential theological college and that there had been a
material change of use.
It was the practice at the Manor to extend open doors to all
comers at almost all hours of the day and night in a way which no
college would do, and which would not be found at any church, even a
major cathedral in a city. It was, as one resident wrote "rather like
having Canterbury Cathedral in the middle of a small English village".
The Inspector expressly considered ISKCON's argument that the
effect of the Section 52 Agreement was to found an estoppel. He noted
that it was an agreement under seal voluntarily entered into and as
such the law of contract applied. Furthermore the recital (viii)
clearly implied that the parties envisaged that some further
enforcement notice might be served if it was deemed expedient. It was
in any event clear from the authority cited that a planning authority
could not by virtue of a Section 52 Agreement fetter its discretion to
carry out its statutory function to serve another enforcement notice
in the future. The rights and duties of the parties conferred by the
Section 52 Agreement should be determined by the law of contract, the
enforcement notice according to the statutory provisions. The
existence of the Section 52 Agreement did not estop the planning
authority from serving the enforcement notice and the Section 52
Agreement had no bearing on the Ground b. appeal, which failed.
As to Ground (a) (the ground of appeal that planning permission
ought to be granted), the Inspector summarised the primary issues,
which were in his view all of equal relevance in setting out the
conflicting priorities. These included:
"vi. Does the importance of the Manor as a shrine and the need
to provide places of worship for the Hindu population:-
a. constitute those very special circumstances which
justify development in the Green Belt in any event;
b. outweigh any specific and convincing planning
objections on any of the grounds noted above and justify an
exception to Green Belt and other Development Plan
policies?
vii. Whether, given the long history, the presumption in favour
of development and the previous decisions by the planning
authority, any injury to amenity can be met by suitable and
enforceable conditions."
The Inspector's conclusions on these issues were as follows:
"37.13 I turn next to issue (vi), very special circumstances.
I accept that the Manor has become a special place of worship and
pilgrimage for the Hindu community in this country, and that
there appear to be very few Hindu places of worship in North
London and nearby counties. The Manor is of special importance
as the home in Britain of ISKCON's founder. I do not doubt that
the traditional religious rites and ceremonies, in sylvan
surroundings, bring inspiration and spiritual comfort to many who
visit. No one could ignore the national and international
concern, and the social issue posed by the possibility of
restricting participation in the worship at the Manor and the
celebration of the Hindu festivals. Whilst I have not adopted
verbatim the findings of fact suggested by Counsel for the
appellants in respect of the planning authority's attitude of
partial acceptance over the years, I accept the basic thesis
behind them, and indeed they are largely borne out by the
planning authority's own evidence.
37.14 The appeal of Krishna Consciousness and the Hindu
population have both increased substantially in the past 15
years. It is very clear from the voluminous documents that
regular attendances at the Manor over and above those at festival
times have also increased significantly in recent years. The
Manor has become an important place of worship and pilgrimage.
This is unfortunate in view of the fact that it is situated in
one of the most vulnerable areas of Green Belt, so very close to
London, in a village of high profile public activities. The sale
of Croome Court and concentration of activities at the Manor
seems to have flown in the face of those constraints which should
have been obvious in view of the history of concern by the
planning authority through the 1970s.
37.15 I take due note that the Manor has been allowed to be used
for public worship and public entertainment at festivals for many
years. I do not consider however that this implies toleration
of the status quo, but rather that the planning authority have
been doing everything they can to avoid the confrontation which
the present enforcement notice has provoked. I note that some
residents accept that they have had less to complain about from
noise and disturbance in recent years, but it is in the nature
of things that uses which have caused conflict are toned down
when there are enforcement proceedings pending. When I bear in
mind the numbers of people and vehicles involved, and the type
of activities, such as weddings and feasts which have been
publicised in the past, I have to take into account that a
planning permission for a use which is geared to attracting
people is very likely to result in an upsurge of activity.
37.16 The appellants maintain that because the earlier
enforcement notice and the Section 52 Agreement provided for a
tolerance of up to 1000 visitors on non-festival days, this
figure at any rate should be regarded as acceptable in planning
terms. By the same token they imply that the 6 Festivals should
be accepted. I do not consider this should necessarily be so.
A figure of 1000 visitors, particularly if it is to be regarded
as 1000 visitors in addition to the staff and students whose
attendance is part and parcel of the determined use of a
theological college, is to my view too large a crowd to bring
into the village in any event on a Sunday. Taking Mr Campbell's
occupancy of 3.85 occupants per car, which seems surprisingly
high, it will still generate some 260 in and out vehicle
movements, which will certainly have a considerable effect on the
Sunday evening peace and quiet for the nearest residents. I
conclude therefore that there is no justification for taking 1000
visitors as an acceptable norm.
37.17 I am in no doubt that any church of any faith or
denomination in a small village or indeed in any closely built
residential area, which regularly attracted 1000-1500 people for
late evening services on Sundays, and crowds of up to 12000 for
festivals 3 times a year, would encounter objections from the
host community. The intimate small scale closely built character
of a home counties village simply cannot accommodate the crowds
attracted to a tirtha in the Indian sub-continent, especially
when most of the worshippers or pilgrims have to come in their
own private transport or in coaches. When religious meetings on
this scale are held in the United Kingdom such as those by Billy
Graham and other evangelists, Earls Court or Wembley Stadium are
booked. I note that Mr Sharman proposes to hold the next Hindu
youth festival in such place, acknowledging that the temple
premises in Wandsworth are not large enough.
37.18 It also seems to me that the fact that the tenets of
Krishna Consciousness prescribe that there must be devotions
virtually 24 hours a day, with comings and goings very late at
night, are particularly intrusive in a small village. The
appellants are not prepared to even consider curbing their night
time activities and maintain that it would be contrary to their
faith to do so. I understand what they say, but this inevitably
makes the use very difficult to fit into a residential village
where most people travel some distance to work, and come home
expecting a measure of peace and quiet, essentially at weekends
when the use of the Manor is at its most active.
37.19 I take due note of the very large number of letters and
petitions, addressed to HM the Queen, the Prime Minister and
members of HM Government, Members of Parliament, the planning
authority and myself relating to this matter. Unfortunately many
of these are based on the premise that there is some antipathy
to the Hindu religion, which is not the case. Inevitably many
of these letters come from people far away from Letchmore Heath
who are not aware of the full circumstances and the problems
posed by the attraction of crowds into a small English village.
I take particular note however that there are also some letters
from local residents supporting the appellants, and there was
some support for the alternative access, if that had proved a
practical proposition.
37.20 In his submissions counsel for the appellants expressly
withdrew any allegations of religious or racial prejudice which
had been made against the planning authority. In this, as in
very many other planning decisions it is necessary to weigh the
needs of one group or interest against others, and the needs of
religious or ethnic minorities, however important, cannot
necessarily be allowed to override those constraints which have
to apply to everyone, in planning as in other matters, in the
interests of a tolerant and free society in a small and crowded
country.
37.21 The appellants appear to have recognised that the
attraction provided by the Manor has outgrown the capacity of
Letchmore Heath to accommodate those it attracts, with the risk
that the very basis of that attraction, a shrine in a peaceful
village in the country, could be destroyed. The aims of the
proposal for an alternative temple indicates the growth in
popularity which is anticipated and the number of worshippers
which might have to be catered for. No further consideration
seems to have been given however to acquiring a country mansion
in a more remote spot, or a redundant ecclesiastical or
educational building closer to the centres of the Hindu
population. I appreciate that a very high standard of Puja has
been developed at the Manor, which is appreciated by a large
congregation, but I am not convinced that the Manor is the only
place where this can be carried on, and it appears that as
recently as 8 years ago a Math could readily be set up at Croome
Court and quickly given up when economic conditions so dictated.
37.22 It was suggested that need justified an exception to, or
setting aside Green Belt policy altogether in this particular
case. However, when I weigh on one side the needs of the
appellants and their congregation and on the other not just for
the Green Belt policy, but the actual disquiet and inconvenience
to residents, and add to that the positive duty which
Conservation Area status imposes on the decision maker, not just
to preserve but also to enhance the character of Letchmore Heath,
I consider that the interests of the village and its residents
should prevail, and that there is insufficient justification for
setting aside that weight of policy as well as other specific and
convincing planning objections.
37.23 The decision on the merits should in my view also take
into account the decision in respect of the Dagger Lane site.
If planning permission is granted for a new temple, then my
conclusions on the merits in respect of the enforcement notice
have that much more force, because an alternative site has been
provided, in accordance with the advice in Annex B of Circular
22/80. However if there is to be no new temple, it still seems
to me that the combination of policy and clearly identifiable
physical disadvantages to the use at Letchmore Heath constitute
spcific and convincing planning objections of such force that
they amply outweigh and displace the arguments on the grounds of
need, even though those arguments then become that much stronger.
37.24 I turn finally to conditions. Every encouragement is
given by Circulars 22/80 and PPG Note 1 to temper enforcement
action by granting planning permission subject to suitable
conditions. In this case the planning authority have shown
themselves willing for at least 10 years to devise some machinery
whereby the religious aspirations of the appellants and their
devotees can be equated with the interests of the residents.
Whilst it is not for me to disagree with the legal interpretation
of the Section 52 Agreement, it does seem to me that the
appellants have chosen to disregard the spirit if not the letter
of it, and I can only conclude that they are unwilling on
principle to restrict the number of people attending their
premises in the interests of the neighbouring residents.
37.25 It seems to me that a condition limiting numbers would be
the only basis on which the damage to amenity caused by the scale
of the public worship and public entertainment activities could
be remedied. Given the past history however I have the gravest
doubts as to whether such a condition could be enforced, and the
very fact that such a condition is necessary points to the
fundamental unsuitability of the premises for activities of this
kind on anything but a purely local scale. I have to agree with
the planning authority that restrictions on numbers have already
been proved not to work. I can think of no other form of
condition which would remedy the damage to the amenities of the
village caused by the present activities, and I do not consider
therefore that a conditional permission is appropriate ..."
On 20 March 1990 the Secretary of State, bearing in mind the
Inspector's report, largely confirmed the enforcement notice (including
his conclusions as to estoppel), with the variation that ISKCON had two
years rather than six months to cease the prohibited use, and a minor
amendment was made to the use to which the Manor and land could be put.
ISKCON exercised their statutory right of appeal under Section
246(1) of the Town and Country Planning Act 1971 (now Section 289 of
the Town and Planning Act 1990). Their Notice of Motion included as
a ground of appeal that ISKCON were prepared to enter into a new
Section 52 Agreement, but did not repeat the estoppel argument. Mr.
Justice Kennedy, giving the judgment of the High Court on
31 October 1991, noted that it was no longer challenged by the
applicants that there had been a material change of use of the Manor.
Instead, the applicants argued, inter alia, (i) that the Inspector and
the Secretary of State had failed to have proper regard to the
willingness of the applicants to enter into a new Section 52 Agreement
and (ii) that the Secretary of State had been wrong to accept the
Inspector's conclusion that the planning objections outweighed the
arguments of the applicants on the ground of need.
As to the former submission, the Court held that, as was clear
from the Inspector's report, negotiations for a further Section 52
Agreement had broken down. There had been an earlier agreement, but
for present purposes it was not material. So, even accepting that the
appellants were willing to enter into an agreement on their own terms,
the position was, as Counsel for the Secretary of State graphically
described it, like one hand clapping. There was nothing for the
Inspector of the Secretary of State to take into account.
On the latter point, ISKCON criticised the Secretary of State's
acceptance of the Inspector's conclusion in paragraph 37.23 of his
report that even if planning permission were not granted in respect of
the Dagger Lane site,
'...the combination of policy and clearly identifiable
physical disadvantages to the use at Letchmore Heath
constitute specific and convincing planning objections of
such force that they amply outweigh and displace the
arguments on the grounds of need, even though those
arguments then become that much stronger.'
It was argued by ISKCON that the Inspector's conclusion was
founded at least in part on misapprehensions. For example, he was
wrong to suggest, without any evidential basis, that if a new temple
were to be built there would be increased activity at the Manor due to
fund raising, or that the appellants might be unable to complete a new
temple project within the time scale allowed. The Court rejected
ISKCON's submissions on the grounds that the matters on which the
Inspector really relied were matters of substance, which permeated his
report. This approach was indicated in paragraph 37.22 of the Report
(see above).
The Secretary of State was entitled to regard the Inspector's
conclusions as firmly founded, and there was no substance in any of the
points which had been argued in support of the appeal.
ISKCON applied for leave to appeal to the Court of Appeal to the
Court of Appeal. On 16 March 1992 Lord Justice Glidewell agreed
largely with the decision of Mr Justice Kennedy of 31 October 1991.
Leave to appeal was refused.
With the refusal of leave to appeal, the two year period for
compliance with the enforcement notice began to run.
Relevant domestic law
Section 174 (2) of the Town and Country Planning Act 1990
provides for the following grounds for appeal to the Secretary of State
against an enforcement notice:
"(a) that planning permission ought to be granted for the
development to which the notice relates or, as the case may be,
that a condition or limitation alleged in the enforcement notice
not to have been complied with ought to be discharged:
(b) that the matters alleged in the notice do not constitute a
breach of planning control;
(c) that the breach of planning control alleged in the notice has
not taken place;
...
(g) that the steps required by the notice to be taken exceed what
is necessary to remedy any breach of planning control or to
achieve a purpose specified in Section 173 (4);
(h) that the period specified in the notice as the period within
which any step is to be taken falls short of what should
reasonably be allowed."
An appeal against the Secretary of State may be made to the High
Court "on a point of law" (Section 289 (1) of the Town and Country
Planning Act 1990).
COMPLAINTS
The complaints made by ISKCON.
ISKCON allege a violation of Article 9 of the Convention. ISKCON
accept that the enforcement notice appears to satisfy the requirements
of lawfulness and legitimate purpose in Article 9 para. 2, but consider
that the interference was not "necessary in a democratic society". In
particular, they consider that the enforcement notice, subsequent
proceedings and the attitude shown by the authorities were
unnecessarily harsh and failed to give sufficient weight to the
importance of the Manor as a place of worship and inspiration for
Hindus. In this respect they also point to a letter of
17 September 1992 from a minister at the Department of the Environment
that "[r]eligious aspects of the Society's activities at Bhaktivedanta
Manor were not relevant" to the enforcement and planning appeals, and
to further letters to the same effect of 26 August and 22 December 1993
from an official and a minister at the Department of the Environment
respectively.
They consider that, in an increasingly ethnically diverse Europe,
the Commission should not hesitate, in an appropriate case, to adopt
a narrow margin of appreciation under Article 9. ISKCON regard the
Section 52 Agreement of 25 January 1983 as evidence of what the council
then accepted as reasonable, and that without giving good reasons for
changing their mind, the council's subsequent enforcement notice and
proceedings were disproportionate.
ISKCON also allege a violation of Article 1 of Protocol No. 1,
taken alone and in conjunction with Article 14 of the Convention.
ISKCON consider that because of the link with religious freedom, a
narrower approach should be made to Article 1 of the First Protocol
than is normally the case, and they argue that Muslims, Catholics and
Protestants have been given permission to use premises for public
worship within Green Belt areas where they have not been so permitted.
ISKCON also allege a violation of Article 6 para. 1 of the
Convention in that they were entitled to access to a court with the
full guarantees of Article 6 in respect neither of their property
rights, nor in respect of their right to freedom of religion. They
point out that the proceedings before the Planning Inspector were non-
judicial, recommendatory in character and subject to alteration or
confirmation at the Secretary of State's discretion, and that the scope
of review of the appeal to the High Court (and subsequent application
for leave to appeal to the Court of Appeal) was not sufficient to
comply with Article 6 para. 1 of the Convention.
ISKCON also allege a violation of Article 13 of the Convention
to the extent that Article 6 para. 1 may be found not to be applicable.
The complaints made by the 8 individual applicants
The individual applicants have each submitted a statement to the
Commission indicating how seriously he or she will be affected if the
enforcement notice takes effect. They ask the Commission to construe
Article 9 of the Convention according to international standards and
developments, with particular reference to the United Nations
Declaration on the Elimination of all forms of intolerance and
discrimination based on religion or belief, 1981. Those applicants who
are parents also rely on Article 2 of Protocol No. 1 in that they are
not able to ensure education and teaching in conformity with their
religious convictions, and that they are no longer able to ensure this
because of the enforcement notice served on ISKCON. The individual
applicants also allege violations of Articles 6 and 13 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 April 1992 and registered
on 13 August 1992.
On 10 February 1993 the Commission decided to communicate the
application to the respondent Government for written observations on
its admissibility and merits. The Government's observations were
submitted on 3 June 1993, and the applicant's observations in reply on
13 September 1993.
On 16 February 1994 the applicants' representatives informed the
Commission that the third named individual applicant had died, and that
they wished to withdraw the application in respect of that applicant.
THE LAW
1. The Commission notes first that the third named individual
applicant has died in the course of the proceedings before the
Commission, and that the applicants' representatives have expressed the
wish to withdraw the application to the extent that it concerns him.
The Commission finds that, to the extent that the application
relates to the third named individual applicant, the conditions of
Article 30 para. 1 (a) (Art. 30-1-a) of the Convention have been
fulfilled, and that respect for Human Rights as defined in the
Convention does not require continuation of the examination of the
petition.
2. ISKCON allege a violation of Article 9 (Art. 9) of the Convention
in that the enforcement proceedings in respect of Bhaktivedanta Manor
interfered in an unjustified way with their freedom of religion.
Article 9 (Art. 9) provides as follows:
"1. Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion
or belief and freedom, either alone or in community with others
and in public or in private, to manifest his religion or belief,
in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be
subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others."
The Government submit that the interest and importance of
ISKCON's rights under Article 9 (Art. 9) of the Convention were fully
taken into account by the Inspector's report and the Secretary of
State's decision.
The Commission notes at the outset that ISKCON do not allege that
the mere existence of planning legislation violated their rights under
the Convention. Indeed, 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 Lonnröth judgment
of 23 September 1982, Series A no. 52, p. 26 para. 69, and, in the
context of the United Kingdom legislation, Chater v, the United
Kingdom, No. 11723/85, Dec. 7.5.87, D.R. 52 p. 250, 256). It is
against this background that the Commission must assess the compliance
with Article 9 para. 2 (Art. 9-2) of any interference with ISKCON's
right under Article 9 para. 1 (Art. 9-1) of the Convention.
ISKCON Ltd. is a registered charity in the United Kingdom. It
is part of the International Society for Krishna Consciousness, which
is the world-wide promoter of Vayishnavism, the worship of Krishna.
ISKCON's use of Bhaktivedanta Manor began in 1973 when the Manor was
acquired, and developed as the Manor became more successful and better
known. The Commission is prepared to assume that the issue of the
enforcement notices to limit use of the manor to that which was
permitted when ISKCON acquired the manor amounts to an interference
with ISKCON's freedom of religion, including the freedom to manifest
that religion in worship, teaching, practice and observance.
The Commission finds that the limitation on ISKCON's freedom to
manifest its religion was prescribed by law in that the domestic town
and country planning legislation was applied. It has not been
suggested that that legislation was insufficiently clear or otherwise
in conflict with the requirement that it be "prescribed by law".
It has, however, been submitted by ISKCON that the interference
was not "necessary in a democratic society" although they accept that
the aim of the interference was to protect the rights of others, namely
the residents of the nearby village. The Commission in addition finds
an element of protection of public order or health in the aim of the
interference, in that planning legislation is generally accepted as
necessary in modern society to prevent uncontrolled development.
The adjective "necessary" in the second paragraph of Articles 8
to 11 (Art. 8, 9, 10, 11) of the Convention implies the existence of
a "pressing social need". Contracting States have a certain margin of
appreciation in assessing whether such a need exists but it goes hand
in hand with European supervision, embracing both the law and the
decisions applying it, even those given by independent courts. The
task of the Convention organs is not to substitute their view for that
of the competent national authorities, but rather to review under the
Article at issue the decisions delivered pursuant to their power of
appreciation. This does not mean that supervision is limited to
ascertaining whether the respondent State exercises its discretion
reasonably, carefully and in good faith; what the Convention organs
have to do is to look at the interference complained of in the light
of the case as a whole and determine whether it was "proportionate to
the legitimate aim pursued" and whether the reasons adduced by the
national authorities to justify it are "relevant and sufficient" (cf.,
in the context of Article 10 (Art. 10) of the Convention, Eur. Court
H.R., Sunday Times judgment of 26 November 1991, Series A no. 217, p.
29 para. 50, with further reference).
Applying these principles to the present case, the Commission
notes that ISKCON do not in substance contend that the planning law was
wrongly applied. Rather, they consider that as the local authority had
initially entered into a Section 52 Agreement with ISKCON, the
requirement of proportionality would have been better met by imposing
additional conditions on the use of the Manor than by serving an
enforcement notice prohibiting the established use of the Manor. They
also point out that the effect of the enforcement notice was to deprive
them of their rights under the Section 52 Agreement to admit up to
1,000 people per day to the Manor. They also lay emphasis on the fact
that inadequate weight was given to their freedom of religion in the
proceedings.
As to the Section 52 Agreement, the Commission notes that the
agreement in the present case was part of continuing attempts by the
local authority and ISKCON to resolve their planning differences, in
this case by entering into a contract relating to the use of the land.
Moreover, as pointed out by the Inspector, it was not only implicit in
the Agreement that further enforcement notices might be served if it
were deemed expedient, but negotiations for a further Section 52
Agreement had broken down. Even assuming that conditions acceptable
to the local authority had been proposed for inclusion in the existing,
or in a new, Section 52 Agreement, the Commission does not consider
that the decision of the local authority to control the use of the
property by recourse to the statutory enforcement powers, rather than
by means of contractual provisions, was in the circumstances
disproportionate to the legitimate aim. Similarly the decision was not
in the Commission's view rendered disproportionate by the fact that on
planning grounds, the local authority were no longer prepared to
contemplate visits to the Manor by up to 1,000 persons per day.
With regard to the weight given to ISKCON's right to religion in
the enforcement proceedings, the Commission notes that although the
courts were limited in their review of the Secretary of State's
decision to confirm the enforcement notices, the Inspector who held an
inquiry into the enforcement notices gave detailed consideration to the
special circumstances of the case. Although he came to the conclusion
that the special circumstances were not sufficient to outweigh the
general planning considerations, the Commission finds that sufficient
weight was given to the position of ISKCON and the difficulties faced
if the user of Bhaktivedanta Manor was limited to that which was
permitted in 1973. In particular, the Commission does not consider
that Article 9 (Art. 9) of the Convention can be used to circumvent
existing planning legislation, provided that in the proceedings under
that legislation, adequate weight is given to freedom of religion. In
contending that inadequate weight was given to ISKCON's freedom of
religion, the applicants rely on statements in letters sent by
Ministers and an official of the Department of the Environment to the
effect that the decision on ISKCON's appeal against the enforcement
notice was based on the relevant land-use planning grounds and that
"the religious aspects of the Society's activities at Bhaktivedanta
Manor were not relevant". The Commission does not interpret these
statements as suggesting that the religious importance of the Manor to
the members of ISKCON was not fully taken into account and weighed
against the general planning considerations, but rather as making clear
that the refusal of planning permisison was based on proper planning
grounds and not on any objections to the religious aspects of the
activities of ISKCON. It is in any event clear from the terms of the
Inspector's Report and the decision letter of the Secretary of State
that considerable weight was attached to the religious needs and
interests of the members of ISKCON and to the importance of the Manor
in relation to the religious activities of the members.
Accordingly, the Commission finds that the interference with
ISKCON's right to freedom of religion under Article 9 (Art. 9) of the
Convention can be regarded as "necessary in a democratic society".
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.
3. ISKCON also allege a violation of Article 1 of Protocol No. 1
(P1-1) to the Convention, taken alone and in conjunction with Article
14 (P1-1+14) of the Convention.
Given that the aim of the enforcement notice served on ISKCON was
to limit the use of the property to that which was permitted when
ISKCON acquired it, the Commission finds that there is some doubt as
to whether there has been any interference with ISKCON's right to
peaceful enjoyment of its possessions. In particular, the Commission
considers that, as a general principle, the protection of property
rights ensured by Article 1 of Protocol No. 1 (P1-1) cannot be used as
a ground for claiming planning permission to extend permitted use of
property. However, assuming that there is such an interference, any
limitation on use requires justification in the public interest if it
amounts to deprivation of possessions, or in the general interest if
it constitutes the control of property.
Although the effect of the enforcement notices is radically to
alter the use to which Bhaktivedanta Manor has been put in recent
years, the Commission finds that it 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. 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. No. 11723/85, Dec. 7.5.87, D.R. 52 p. 250, 256
with further references).
The Commission finds that planning controls are necessary and
desirable in modern society in order to preserve and improve town and
country landscapes (cf. the above-mentioned Chater decision, D.R. 52
p. 256).
As to proportionality, the Commission notes that the Inspector
who held the inquiry into the enforcement notices found that the Manor
had caused a certain amount of disturbance to neighbouring residents,
and that at times it gave rise to considerable traffic problems. If
the Inspector and/or the Secretary of State had taken into account
irrelevant matters, or if they had failed to take into account matters
which were relevant, these matters could have been raised on the appeal
against the Secretary of State's decision. The Commission finds no
indication in the Inspector's report, and the subsequent decision by
the Minister, that the various interests involved were not duly taken
into consideration.
In the light of these considerations, the Commission finds that
a proper balance has been struck between ISKCON's interests and the
general interest.
In connection with Article 14 (Art. 14) of the Convention, the
Commission notes that ISKCON withdrew allegations of racial or
religious prejudice in the the planning inquiry, as there was no
evidence of bad faith of the part of the local authority in relation
to the adoption on the enforcement notice. In such circumstances,
alleged prejudice and hostility from individuals cannot be of relevance
to the complaints under Article 1 of Protocol No. 1 (P1-1).
The Commission finds that the control of the use of ISKCON's
property, which prevents ISKCON from using Bhaktivedanta Manor for
purposes, broadly, beyond what was permitted in 1973, is, therefore,
in accordance with the requirements of Article 1 of Protocol No. 1
(P1-1), and does not raise any issues under Article 14 (P1-1+14) of the
Convention in connection with that provision.
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.
4. ISKCON also allege a violation of Article 6 para. 1 (Art. 6-1)
of the Convention on the ground that they were entitled to, but did not
have, the benefit of a court decision to determine the interference
with their freedom of religion. They link this with a complaint that
the global review of the High Court was limited to questions of law.
Article 6 para. 1 (Art. 6-1) of the Convention provides as
follows:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law..."
The Government do not accept that ISKCON had a "civil right" to
freedom of religion, although they point out that there are no
restrictions, civil or criminal, which limit a person's freedom to
practice his religion as such. They consider that the alleged civil
right in issue was whether or not ISKCON's religious interests and need
outweighed the evident planning concerns in the case. In this respect,
they submit that the proceedings before the Inspector complied with the
requirements of Article 6 (Art. 6) of the Convention, but that in any
event the appeal to the High Court, and the possibility of judicial
review of the Secretary of State's decision, satisfied the requirement
of "full jurisdiction" inherent in Article 6 (Art. 6) of the
Convention.
To the extent that ISKCON complain of a denial of access to court
in respect of the enforcement orders on their freedom of religion, or
in respect of their freedom of religion as such, the Commission recalls
that it is not the function of Article 6 (Art. 6) to regulate the
content of civil "rights and obligations" (cf. Eur. Court H.R.,W.
judgment of 8 July 1987, Series A no. 121, p. 32 para. 73). The
Commission notes, as ISKCON submit, that freedom of religion has no
formal status as a right which is guaranteed in United Kingdom domestic
law. Accordingly, disputes over freedom of religion of the type
involved in the present case do not determine "civil rights" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
There remains, however, the complaint that the High Court could
only consider points of law in connection with the determination of the
civil rights which were at issue, that is, the "pure" planning issues.
The Government contend that the proceedings before the Inspector
complied with Article 6 (Art. 6), in which case the Commission is not
required to consider the proceedings at the High Court with such close
scrutiny. However, the Commission is not required to make a finding
as to this question, as this part of the application is in any event
inadmissible for the following reasons.
The Commission recalls that appeals against the decisions of
administrative bodies, which themselves do not comply with Article 6
(Art. 6), will only be consistent with Article 6 para. 1 (Art. 6-1) of
the Convention if they are conducted before "judicial bodies that have
full jurisdiction" (Eur. Court H.R., Albert and Le Compte judgment of
10 February 1983, Series A no. 58, p. 16, para. 29). It is true that
Section 289 of the Town and Country Planning Act 1990 provides that
appeals to the High Court against enforcement notices may only be made
"on a point of law".
The local authority did not, however, have a complete discretion
in taking enforcement proceedings. In particular, it could only take
proceedings in circumstances within the limits defined by Section 174
of the Town and Country Planning Act 1990 (which sets out the grounds
of appeal to the Secretary of State), and in accordance with its own
structure plans and the policy guidance laid down in various documents
by the Secretary of State. ISKCON were then able to have a
determination from the High Court of whether the legal aspects (that
is, "points of law",) of these requirements had been met.
The Commission recalls that the High Court dealt with each of
ISKCON's grounds of appeal on its merits, point by point, without ever
having to decline jurisdiction. Moreover, it was open to ISKCON to
contend in the High Court that findings of fact by the Inspector and/or
the Secretary of State were unsupported by evidence, as they could have
argued that the administrative authorities failed to take into account
an actual fact or did take into account an immaterial fact. Finally,
the High Court could have interfered with the administrative
authorities' decisions if those decisions had been irrational having
regard to the facts established by the authorities.
It is not the role of Article 6 (Art. 6) of the Convention to
give access to a level of jurisdiction which can substitute its opinion
for that of the administrative authorities on questions of expediency
and where the courts do not refuse to examine any of the points raised:
Article 6 (Art. 6) gives a right to a court that has "full
jurisdiction" (cf. Eur. Court H.R., Zumtobel judgment of 21 September
1993, Series A no.268-A, para. 32).
In these circumstances, the Commission finds that the review by
the High Court fulfilled the requirements of 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 6 para. 1 (Art. 6-1) of the
Convention.
5. ISKCON finally allege a violation of Article 13 (Art. 13) of the
Convention in that no domestic remedy was available to them to make
their complaints under, principally, Article 9 (Art. 9) of the
Convention. However, the guarantees of Article 13 (Art. 13) apply only
to a grievance which can be regarded as "arguable" (cf. Eur. Court
H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172,
p. 14 para. 31, with further references). In the present case, the
Commission has rejected the substantive claims as disclosing no
appearance of a violation of the Convention. For similar reasons, it
cannot be regarded as "arguable".
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.
6. The eight individual applicants each allege violations of
Articles 9, 6 and 13 (Art. 9, 6, 13) of the Convention on the same
grounds as ISKCON, save that they do not make the allegations relating
to property rights. Those applicants who are parents also contend that
they are not able to ensure that their children are taught in
accordance with their convictions as Bhaktivedanta Manor will no longer
be fully operational. They see a violation of Article 2 of Protocol
No. 1 (P1-2) to the Convention in this respect.
The Commission has had regard to the statements submitted by the
individual applicants and accepts that each of them is sufficiently
affected by the decisions of the domestic authorities to be able to
claim to be a victim of an alleged violation of the Convention within
the meaning of Article 25 (Art. 25) of the Convention.
However, the reasons for the Commission's findings in the
paragraphs above in relation to ISKCON apply, mutatis mutandis, to the
individual applicants. In the same way as ISKCON cannot derive from
the Convention a right to exemption from the ordinary planning controls
(provided due attention is paid to their interests), the individual
applicants must accept that the enforcement of those planning controls
affects the modalities of their worship and, so far as relevant, the
education of their children.
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 DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF
CASES to the extent that it relates to the third named individual
applicant, and
by a majority DECLARES THE REMAINDER OF THE APPLICATION
INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy