AS TO THE ADMISSIBILITY OF
Application No. 28911/95
by William TITTERRELL
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 13 April 1995 by
William TITTERRELL against the United Kingdom and registered on
11 October 1995 under file No. 28911/95;
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 applicant is a British citizen, born in 1930 and resident in
London. The facts as submitted by the applicant may be summarised as
follows.
A. The particular circumstances of the case
1. Planning permission
In 1987 the applicant purchased a piece of land ("the land"), in
the vicinity of Five Oaks Green village in Kent, approximately 21 miles
from the edge of Greater London, on which he intended to build twelve
three-bedroom bungalows. In October 1985, the applicant, as a person
interested in the land, had entered into an agreement with Tunbridge
Wells Borough Council ("the council"), regarding the development of the
site. The applicant also obtained planning permission for twelve
holiday chalets to be built on the land. The planned holiday chalets
were small units with a floor area of five hundred square feet, and
they were not to be permanently occupied.
In August 1987 the applicant sought to ascertain whether, under
section 53 of the Town and Country Planning Act 1971 ("the 1971 Act"),
a change from holiday to permanent residential use of the chalets
constituted a development requiring planning permission.
By 8 October 1987, particulars of the three-bedroom bungalows had
been circulated to prospective buyers, by the applicant's estate agent,
and building had commenced. During 1987 eight bungalows were built.
On 8 October 1987 the council wrote to the applicant's estate agent
stating that the planning permission for the land related to 12 self-
catering holiday units.
On 28 October 1987, in response to the request for a
determination under section 53 of the 1971 Act, the council's planning
authority informed the applicant that a change of use of the chalets
from holiday to residential use, would not constitute development of
the land. This letter contained an "advisory note" which reminded the
applicant that the initial planning permission was, despite the change
of use determination, still subject to a number of conditions and that
the covenants entered into by him under the agreement of October 1 1985
were not affected by the determination.
The applicant sought, by judicial review, a declaration of the
standing of the determination, under section 53 of the 1971 Act ("the
determination"). He sought to argue that the determination that the
change of use was not a development, had the additional effect of
granting planning permission for permanent residential use, free of the
conditions and covenants attached to the October 1985 planning
permission for the holiday chalets.
It was held by Mr. Justice Popplewell on 20 July 1989, that
whilst the determination did constitute planning permission for use of
the holiday chalets as residential units, the determination did not
abolish the pre-existing conditions or covenants attached to the
planning permission for the holiday chalets.
The applicant has been informed by the council that he will face
injunction proceedings if he seeks to sell any of the bungalows already
constructed.
The applicant initially appealed against this decision to the
Court of Appeal, however on 15 April 1990 the appeal was withdrawn.
The applicant withdrew the appeal as the council's director of
planning, suggested an alternative development for the land. This new
plan was entered in the Draft Local Plan in April 1991, however the
plan was not accepted by the Secretary of State.
In 1995 the applicant sought legal aid, apparently to appeal
against the decision of Mr. Justice Popplewell and/or to re-commence
proceedings as to the effect of the determination under section 53 of
the 1971 Act. Legal Aid was refused on 19 July 1995 and an appeal
against this refusal was rejected on 26 September 1995, on the grounds
that the applicant's case showed no reasonable prospects of success.
2. Extent of the Metropolitan Green Belt
Five Oaks Green village falls within the Metropolitan Green Belt
("MGB").
Under the Kent Development Plan of 1967 Five Oaks Green had been
an excepted village. This status allowed minor redevelopment such as
infilling within the confines of the village.
In 1980 the Kent County Council enforced a new Kent Structure
Plan ("KSP"), superseding earlier development/structure plans. The MGB
was broadly defined in the KSP, approved by the Secretary of State for
the Environment in a letter dated 31 March 1980. In this letter the
Secretary of State comments that the KSP was intended to give a broad
indication of the area to which the MGB applied, but that precise
boundaries should be defined in local plans. Nevertheless he comments:
"a depth of 12-15 miles is usually adequate for the MGB".
No challenge was made to the KSP within the requisite 6 weeks
from the date of publication of the Secretary of State's notice of
approval and the KSP became operative on 21 April 1980.
The precise boundary of the MGB was fixed by the Kent Countryside
Local Plan ("KCLP") drawn up by the council. The village of Five Oak
Green and the applicant's property was within the MGB boundary. The
KCLP was the subject of public consultation in 1981 and objections to
it were considered at a public local inquiry held in 1982. No
objections were made to the definition of the outer edge of the MGB.
The KCLP was approved in May 1983.
Local planning authorities define the inner boundary of the Green
Belt around the settlements which lie within the outer edge. Such a
plan was drawn up by the applicant's council in the Tunbridge Wells
Borough Local Plan ("TWBLP") in April 1992. The applicant objected to
the fact the TWBLP placed his property outside the Five Oak Green
village boundary. His objection was heard at a public inquiry in
October 1993. The Inspector concluded that the village of Five Oak
Green was within the MGB, and that the KSP overruled the former
designation of Five Oak Green as an "excepted village" under the Kent
Development Plan of 1967. The Inspector further upheld the TWBLP
boundary, that excluded the applicant's land from the village of Five
Oak Green.
The applicant lodged an application for judicial review in May
1993, apparently seeking declarations that the Kent County Council had
extended the MGB beyond that approved by the Secretary of State in
1980, that his property had been unlawfully blighted by being included
in the MGB and that the Lands Tribunal had failed in its duty to ensure
strict compliance with the Lands Tribunal Rules. Leave was granted for
judicial review by Mr. Justice Tucker on 16 June 1993. However counsel
advised, in June 1994, that there was no realistic prospect of success
and it appears that the action for judicial review was not continued.
The applicant subsequently sought to issue a blight notice,
claiming that the inclusion of his land within the MGB characterised
it as blighted land. This was rejected by the Lands Tribunal on
16 June 1995.
The applicant sought legal aid to appeal against the decision of
the Lands Tribunal. Legal aid was refused on 7 September 1995 and an
appeal against this refusal was likewise rejected on 26 September 1995,
on the grounds that the applicant's case had no reasonable prospects
of success.
B. Relevant domestic law and practice
Section 53 of the Town and Country Planning Act 1971 (as amended)
provides so far as relevant as follows:
"(1) If any person who proposes to carry out any operations on
land, or to make any change in the use of land -
(a) wishes to have it determined whether the carrying out
of those operations, or the making of that change, would
constitute or involve development of the land and,
(b) if so, whether an application for planning permission
in respect of it is required under this Part ...
he may apply to the local planning authority to determine that
question."
COMPLAINTS
The applicant complains that the decisions concerning the
necessary planning permission for a development of his land, have meant
that he has not been able to enjoy the freedom to deal with his
property as desired. He claims a violation of Article 8 of the
Convention and Article 1 of Protocol No. 1 of the Convention.
With regard to the designation of the applicant's land as being
within the MGB, the applicant complains that such designation was
unlawful, has denied him the peaceful enjoyment of his possessions and
caused him financial ruin. The applicant complains of a violation of
Article 8 of the Convention and Article 1 of Protocol No. 1.
THE LAW
1. The applicant complains that he was refused planning permission.
He alleges a violation of Article 1 of Protocol No. 1 (P1-1) and
Article 8 (Art. 8) of the Convention.
The Commission recalls that in accordance with Article 26
(Art. 26), it may only deal with a matter within six months of the
final decision.
In respect of this complaint, the final decision was the decision
of Mr Justice Popplewell of 20 July 1989. The applicant's attempt to
obtain legal aid in 1995 to bring further proceedings against the
Tunbridge Wells Council could not alter the position as it was simply
an attempt to re-litigate issues decided in July 1989 and does not
constitute an effective remedy (see Eur. Court HR, Van Osterwijck v.
Belgium judgment of 6 November 1980, Series A no. 40, pp. 13-14,
para. 27). The final decision was that of 20 July 1989, which is more
than six months before the date on which the application was introduced
on 13 April 1995.
Accordingly it follows that in accordance with Article 26
(Art. 26), this part of the application must be rejected as
inadmissible under Article 27 (Art. 27) of the Convention, as being
submitted more than six months after the final decision.
2. The applicant complains that his land was deemed to fall within
the Metropolitan Green Belt. He invokes Article 8 (Art. 8) of the
Convention, and Article 1 of Protocol No. 1 (P1-1) to the Convention.
The Commission first notes that there is no indication whatever
that the fact that his property is within the Green Belt interferes
with his rights under Article 8 (Art. 8) of the Convention. There is
no indication in the file that the applicant ever intended to make his
home on the property, rather it was a commercial venture. In these
circumstances, the Commission considers that the complaint under
Article 8 (Art. 8) of the Convention is properly characterised as a
complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"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
condition provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
With regard to the proceedings for judicial review, for which
leave was given in May 1993, this was never proceeded with on the
advice of counsel. The public enquiry, which considered the extent of
the outer MGB boundary and the village boundary in relation to the
applicant's land, was held in October 1993 and it appears that no
action was taken to appeal against this decision. The applicant was
refused legal aid and did not pursue an appeal against the decision of
the Land Tribunal of June 1995, which rejected his claim that his land
was "blighted" by being within the MGB. The Commission is prepared to
assume for the purpose of these proceedings that Article 26 (Art. 26)
of the Convention has been complied with.
As mentioned above, the applicant's land was in the Green Belt.
There is therefore some doubt as to whether there has been any
interference with the applicant's right to peaceful enjoyment of his
possessions. In particular the Commission recalls 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 (see. No. 20490/92,
Dec. 8.3.94, D.R. 76-A, p. 108). However, assuming that the decision
in April 1992, which held that the applicant's land fell outside the
village boundary (the subject of a public inquiry in October 1993),
affected the degree of Green Belt restrictions on the applicant's land
and as such constituted an interference, this amounts to a control of
the use of the applicant's property pursuant to the second paragraph
of Article 1 of Protocol No. 1 (P1-1). (see No. 11185/84, Dec. 11.3.85,
D.R. 42, p. 278; Eur. Court HR, Pine Valley Developments Ltd and Others
v. Ireland judgment of 29 November 1991, Series A no. 222, p. 25,
paras. 55-56 with further references).
The Commission must therefore consider whether any such
interference was "in accordance with the general interest" for the
purposes of the second paragraph of Article 1 (Art. 1-2) (see the
above-mentioned Pine Valley judgment, p. 25, para. 57).
It is true that the applicant claims that the extension of the
MGB to include his land was not in accordance with the law. The
Commission notes that this allegation was made unsuccessfully by the
applicant at the public enquiry in October 1993 and was rejected by the
Planning Inspector. Accordingly, and apart from the fact that the
applicant is not able to complain about this decision of the Planning
Inspector by virtue of the six months rule, the Commission finds no
indication that any interference with the applicant's rights was not
"lawful".
The Commission must next determine whether a fair balance was
struck between the general interest of the community and the protection
of the individual's fundamental rights (see No. 20490/92, Dec. 8.3.94,
D.R. 76-A, p. 108 with further references and No. 11723/85,
Dec. 7.5.87, D.R. 52, p. 256).
The applicant's land is situated in Kent, a region which forms
part of the rural band that surrounds Greater London. The Commission
recognises that planning controls are necessary and desirable in order
to maintain rural areas and halt the phenomenon of urban sprawl,
particularly in relation to countryside surrounding a major capital
city (see the above mentioned Decision, D.R. 76-A, p. 108). Further
the Commission notes that the applicant was concerned in a commercial
venture which, by its very nature, involved an element of risk (see
Eur. Court HR, Håkansson and Sturesson v. Sweden judgment of
21 February 1990, Series A no. 171-A, pp. 17-18, paras. 53 and 55 and
Fredin v. Sweden judgment of 18 February 1991, Series A no. 192,
pp. 17-18, paras. 54-55). He was aware, having negotiated the original
planning permission for holiday chalets, of the restrictions on
development (see the above mentioned judgement of 29 November 1991,
Pine Valley Developments Ltd and Others v. Ireland, Series A no. 222,
para. 59).
The Commission therefore finds that a proper balance has been
struck between the applicant's and the general interest. The control
of the use of his property is therefore in accordance with the
requirements of Article 1 of Protocol No. 1 (P1-1).
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,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy