AS TO THE ADMISSIBILITY OF
Application No. 32372/96
by Gerard TIMMER and 't Laakse Hoogh B.V.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, 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 10 June 1996 by
Gerard TIMMER and 't Laakse Hoogh B.V. against the Netherlands and
registered on 22 July 1996 under file No. 32372/96;
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 first applicant is a Dutch national, born in 1937, and
resides in Driel, the Netherlands. He is the director of the second
applicant, a company with limited liability established at Driel. Both
applicants are represented by Ms C.M.A. Delissen-Buijnsters, a lawyer
practising in Arnhem.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 30 October 1970, B. was granted a licence under the Nuisance
Act (Hinderwet) to operate a pig farm with a maximum capacity of
200 pigs. A number of conditions were attached to this licence.
In July 1972, B. sold to the first and/or second applicants a
plot with a building which had until then been used as a hotel-
restaurant with a private home. This plot is directly adjacent to the
plot on which B. exploits the pig farm. As from the acquisition of this
building, the applicants used it as a private home and office.
By decision of 26 October 1993, the Mayor and Aldermen
(Burgemeester en Wethouders) of the municipality of Heteren rejected
the second applicant's request to attach further conditions
(aanvullende voorschriften) to B.'s licence under the Nuisance Act.
The Mayor and Aldermen found, inter alia, that, although the
distance norms in the pamphlet "Cattle Farming and Nuisance Act"
(brochure "Veehouderij en Hinderwet") were not met and nuisance caused
by stench was thus plausible, the licence holder could not be expected
to make expensive arrangements, in particular since it was not at all
certain that these arrangements would lead to the results desired.
The applicants filed an appeal with the Administrative Law
Division of the Council of State (Afdeling Bestuursrechtspraak van de
Raad van State), which led to a decision of 25 March 1994 by the
President of the Administrative Law Division quashing the decision of
26 October 1993.
The Mayor and Aldermen and B., as an interested party, both filed
an objection (verzet) against the President's decision with the full
bench of the Administrative Law Division.
By letter of 27 December 1994, the Mayor and Aldermen informed
the applicants of their decision to abandon the proceedings before the
Administrative Law Division, as certain measures aimed at limiting the
nuisance caused by stench had to be taken. They stated that they
intended to prohibit the keeping of pigs in the pigsty closest to the
applicants' house and to decrease the maximum number of pigs allowed
by 30. The applicants filed an appeal against this decision with the
Administrative Law Division.
On 20 July 1995 the full bench of the Administrative Law Division
found the objections lodged against the President's decision of
25 March 1994 well-founded, thus rendering the President's decision
null and void.
On 20 October 1995, an oral hearing on the applicants' appeals
against the decisions of 26 October 1993 and 27 December 1994 was held
before the full bench of the Administrative Law Division during which
the representatives of the applicants, the Mayor and Aldermen and B.
made oral submissions.
In its decision of 13 December 1995, the Administrative Law
Division rejected the appeal against the decision of 26 October 1993.
It noted that the Mayor and Aldermen had taken the distance norms
stated in the pamphlet Cattle Farming and Nuisance Act as a standard
in their assessment of the case, which the Administrative Law Division
considered an acceptable approach. It further noted that it had not
been argued or appeared that the application of the norms in this
pamphlet would result in an incorrect assessment of nuisance caused by
stench.
After having considered the written and oral submissions made
before it, the Administrative Law Division held that the agricultural
destination of the area at issue was beyond doubt and that this
destination was not affected by the presence of buildings with a non-
agricultural use like the applicants' premises. Consequently, the Mayor
and Aldermen correctly applied the relevant norms contained in the
pamphlet, according to which the minimum distance between an
installation and a smell-sensitive object must be 50 metres. In the
present case, where it concerned 200 pigs, the minimum distance must
be 63 metres according to the pamphlet.
The Administrative Law Division considered that, on grounds of
constant case-law, protection against nuisance caused by stench must
be offered in respect of habitation. It held that the distance at issue
was to be calculated from the outside wall of the house of the second
applicant and the outside wall of the most nearby pigsty.
It was found established that the distance between the house and
the pigsty was smaller than the minimum distance according to the norms
in the pamphlet. The Administrative Law Division considered it,
therefore, necessary to examine the Mayor and Aldermen's reasons for
rejecting the applicants' request.
After having considered the various oral and written submissions
on this point, the Administrative Law Division accepted the opinion of
the Mayor and Aldermen that the case did not concern an unacceptable
situation from an environmental point of view. It held that in such a
situation an order to make drastic stench-limiting arrangements was not
necessary. According to the pamphlet, the making of such arrangements
could be expensive whereas they could not always prevent the occurrence
of nuisance.
Although the Administrative Law Division did not exclude that the
expenses for making such arrangements were not as high as alleged in
the proceedings, it concluded that compliance with the applicants'
request would entail the making of arrangements which could not be
required from the licence holder and, consequently, accepted the
rejection of the second applicant's request by the Mayor and Aldermen.
Also by decision of 13 December 1995, the Administrative Law
Division rejected the applicants' appeal against the decision of
27 December 1994. In this decision the Administrative Law Division
limited itself to referring to its findings in its decision of the same
date on the applicant's appeal against the decision of 26 October 1993.
It further held that no facts or circumstances had appeared on the
basis of which it should take a different decision in the present case.
The Administrative Law Division therefore rejected the appeal as
ill-founded.
COMPLAINTS
1. The applicants complain under Article 6 para. 1 of the Convention
that they did not receive a fair hearing in the second set of
proceedings before the Administrative Law Division in that it did not
give any reasons for its rejection of the applicants' appeal.
2. The applicants complain under Article 8 of the Convention of the
authorities' failure to order appropriate measures in order to limit
the nuisance caused to them by B.'s nearby installation.
THE LAW
1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention that the Administrative Law Division rejected their appeal
against the decision of 27 December 1994 by the Mayor and Aldermen
without stating any reasons.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by a ... tribunal
established by law."
The Commission must first determine whether Article 6 para. 1
(Art. 6-1) applies to the proceedings at issue in the present case,
notably whether there was a dispute over a "right" which can be said,
at least on arguable grounds to be recognised under domestic law. The
dispute must be genuine and serious and its outcome must be directly
decisive for the right in question. It must furthermore be ascertained
that the right in question is "civil" in nature within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR,
Neigel v. France judgment of 17 March 1997, Reports 1997-II, No. 32,
paras. 38 and 39).
The Commission notes that the Administrative Law Division
acknowledged that under Dutch law there is a right to be protected
against nuisance caused by stench. There was, therefore, a dispute over
a right within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
As to the question whether this right can be regarded as "civil"
for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention, the
Commission considers that the right to be protected against
environmental nuisance is directly linked to the applicants' enjoyment
of their property, i.e. a private home and office. Furthermore,
although the applicants have not stated that they intended to sell the
real property at issue, the Commission does not exclude that the
existence of environmental nuisance could affect the value of this part
of the applicants' patrimony. The Commission also recalls that
proceedings concerning the grant of a licence under the Nuisance Act
have been held to determine a civil right within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention as regards the person requesting
the issuance of such a licence (cf. Eur. Court HR, Benthem v. the
Netherlands judgment of 23 October 1985, Series A no. 97, p. 16, paras.
34-36).
Although the licence holder B. was only involved as an interested
party in the proceedings at issue, it could be argued that these
proceedings did in fact have a certain bearing on B.'s civil rights and
obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention in that the outcome of the proceedings would, to a certain
extent, be decisive for the question whether the conditions attached
to the licence would remain unaltered or rendered more severe.
However, the Commission does not find it necessary to determine
this question in the present case, as this complaint is in any event
manifestly ill-founded for the following reasons.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention obliges the courts to give reasons for their judgments, but
the question whether a court has failed to fulfil the obligation to
state reasons, deriving from Article 6 (Art. 6), can only be determined
in the light of the circumstances of the case (cf. Eur. Court HR, Ruiz
Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12,
para. 29; and Hiro Balani v. Spain judgment of 9 December 1994, Series
A no. 303-B, p. 29, para. 27).
The Commission notes that the proceedings at issue concerned the
question whether or not the conditions attached to the licence under
the Nuisance Act granted to B. should be rendered more severe and, if
so, in which manner and to what extent. The outcome of both sets of
proceedings was dependent on the Administrative Law Division's
assessment of facts and circumstances, which were identical in both
sets of proceedings.
In these circumstances, the Commission accepts that the substance
of both sets of proceedings was sufficiently similar to allow the
Administrative Law Division, in its decision of 13 December 1995 on the
appeal against the decision of 27 December 1994, to refer to its
findings and the pertaining reasons stated in its decision on the
appeal against the decision of 26 October 1993, which was rendered by
the Administrative Law Division on the same day and which concerned de
facto the same parties. Moreover, the Administrative Law Division did
examine the separate question whether or not there were facts or
circumstances on the basis of which it should reach a different finding
as regards the appeal against the decision of 27 December 1994 and held
that this was not the case.
The Commission, therefore, concludes that the reasoning contained
in the Administrative Law Division's decision on the appeal lodged
against the decision of 27 December 1994 was sufficient for the
purposes of Article 6 para. 1 (Art. 6-1) of the Convention.
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 under Article 8 (Art. 8) of the
Convention of the authorities' failure to order appropriate measures
in order to limit the nuisance caused by B.'s nearby installation.
Article 8 (Art. 8) of the Convention, insofar as relevant, reads:
"Everyone has the right to respect for his private and family
life, his home and his correspondence."
The Commission recalls that severe environmental pollution may
affect individuals' well-being and prevent them from enjoying their
homes in such a way as to affect their private and family life
adversely, without, however, seriously endangering their health (cf.
Eur. Court HR, López Ostra v. Spain judgment of 9 December 1994, Series
A no. 303-C, p. 54, para. 51).
The Commission notes in the first place that the second applicant
is a company with limited liability. The question therefore arises
whether a legal person as opposed to a natural person, like the first
applicant, can derive any rights from Article 8 (Art. 8) of the
Convention, which seeks to protect the personal sphere of individuals
(cf. No. 34614/97, Dec. 7.4.97, D.R. 89, p. 163).
The Commission, however, does not find it necessary to determine
this question as this part of the application is in any event
manifestly ill-founded for the following reasons.
The Commission accepts that the nuisance at issue may affect the
rights protected by Article 8 (Art. 8) of the Convention. The present
case hinges on the question whether the authorities were under a duty
to render the conditions attached to B.'s licence under the Nuisance
Act more strict.
In determining the question whether a State falls short of its
positive duties under Article 8 (Art. 8) of the Convention, regard must
be had to the fair balance that has to be struck between the competing
interests at issue and in any case the State enjoys a certain margin
of appreciation (cf. Eur. Court HR, Ahmut v. the Netherlands judgment
of 28 November 1996, Reports 1996-VI, No. 24, para. 63).
The Commission notes that the licence at issue was granted two
years before the applicants acquired the plot and buildings thereon
from B. The Commission further notes that the authorities considered
that the occurrence of nuisance caused by stench was plausible given
the distance between B.'s installation and the applicants' private home
and office.
However, after having found that the applicants' home and office
found themselves in an agricultural area and that the nuisance
complained of did not concern an unacceptable situation from an
environmental point of view and after having balanced the costs B.
would have to incur in making the arrangements suggested by the
applicants against the uncertain prospects of success of these
arrangements, the Administrative Law Division held that such
arrangements could not be required from B.
In these circumstances, the Commission cannot find that the
balance struck by the Administrative Law Division between the
respective interests at stake is incompatible with the Netherlands
Government's positive obligations under Article 8 (Art. 8) of the
Convention.
It follows that this part of the application must be rejected for
being 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy