CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 juillet 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF     Application No. 13135/87 by S. and Others against the United Kingdom             The European Commission of Human Rights sitting in private on 4 July 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      S. TRECHSEL                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   J. RAYMOND, Deputy Secretary to the Commission             Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 24 April 1987 by S. and Others against the United Kingdom and registered on 11 August 1987 under file No. 13135/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant, S. is a British citizen born in 1911 and trustee of the Discretionary Trust Fund, which owns the K. Estate. The second applicant, F., is a British citizen born in 1970 and is a beneficiary of the trust.   The third applicant, S., a British citizen born in 1936, is the mother and curator-at-law of the second applicant.   The fourth applicant, T., is a British citizen born in 1966 and is a beneficiary of the trust.   The fifth applicant, R., is a British citizen born in 1968 and is also a beneficiary of the trust. The applicants all reside at C. Estate, S., and are represented before the Commission by Donald Ross MacDonald, a solicitor practising in Glasgow.           The facts as submitted by the applicants may be summarised as follows.           The K. estate is a residential, agricultural and sporting estate in the Highlands of Scotland; about 10 miles long and 2 miles wide.   It comprises K. House and grounds, B. and L. Farms and hill ground used for stock grazing and sporting.           Part of the land belonging to the trust (75 acres out of an estate of 10,000 acres) was acquired by the Secretary of State for Scotland under two compulsory purchase orders in order to carry out re-alignment of the A9 trunk road from P. to I.   This land was vested in the Secretary of State by General Vesting Declaration on 9 and 16 April 1979.           Pursuant to the purchase, the Highland Regional Authority have constructed a new section of the A9, with associated link roads, bridges, accommodation roads and intersections.   Both sides of the new roads have been fenced in the course of the works.           The applicants and the Secretary of State's valuers failed to reach agreement as to the compensation payable, and the applicants applied to the Lands Tribunal for Scotland to ascertain the amount of compensation.           Two of the central issues brought before the tribunal concerned, firstly, compensation for cost of maintaining and replacing in future the accommodation works and the fencing erected along the new roads running through the estate, and, secondly, compensation for loss of amenity to the estate from the existence of the new roads. The applicants claimed £335,696 in compensation, £147,242 of which related to costs of future maintenance.           The tribunal consisting of Lord Elliott and Mr.   T. Finlayson Frics, heard evidence on 3-14 February 1986, on 16 April 1986 and made inspection of the relevant portions of the estate on 17-18 April 1986.   The applicant was represented by a Q.C. and junior counsel as was the Secretary of State for Scotland as the acquiring authority. Both parties called expert witnesses.           The statutory provisions governing compensation in issue before the tribunal were as follows:           Section 61 of the Land Clauses (Consolidation) (Scotland) Act 1845:           "In estimating the purchase money or compensation to be         paid by the promoters of the undertaking, in any of the         cases aforesaid, regard shall be had not only to the value         of the land to be purchased or taken by the promoters of         the undertaking, but also to the damage, if any, to be         sustained by the owner of the land by reason of the         severing of the lands taken from the other lands of such         owner or otherwise injuriously affecting such lands by         the exercise of the powers of this or the special Act,         or any other Act incorporated therewith."           This section is supplemented by Section 41 of the Land Compensation (Scotland) Act 1973 which includes damage due to the subsequent use of the land acquired.           Section 2(2) of the Acquisition of Land (Assessment of Compensation) Act 1919 introduced under "Rule 2" the open market criterion in place of "value to owner" when assessing the value of land.   It also applies when assessing the depreciation in value of retained land.   Section 2(6) ("Rule 6") however provided that "the provisions of "Rule 2" shall not affect the assessment of compensation for disturbance or any other matter not based directly on the value of land".   So the latter conferred no new rights but merely confirmed the continuance of pre-existing rights to claim for "disturbance and other matters" of consequential loss.           The applicants advocated to the tribunal compensation on the basis of an inflation-proofed "sinking fund" which would provide income to deal with repairs as and when they occurred in the future. They advocated that "Rule 6" rather than "Rule 2" of the relevant legislation was applicable in their case, namely that compensation should not be calculated with reference to market value.   On 6 November 1986, however, the tribunal decided that the compensation for future maintenance should be calculated by reference to the overall diminution in the market value of the retained land, taking into account the likely future expenditure involved as a guide to the amount by which notional purchasers would be likely to lower their offers.   They found that future maintenance fell under the heading of injurious affection of "Rule 2" rather than consequential loss of "Rule 6".   In assessing the depreciation of value the tribunal examined each item of claim related to the burden of future maintenance and accepted the valuation approach of the district valuer giving evidence for the Secretary of State, who calculated compensation according to the actual prime costs of the accommodation works.   The tribunal noted that this approach had already been regarded as acceptable by all other owners and surveyors who had settled claims concerning other stretches of the new A9.   The tribunal awarded the sum of £38,100 to the applicants in respect of this item of claim.   The tribunal also found that there was no loss of general amenity to the estate.   The tribunal had inspected the estate and found that, having regard to the effect which the old A9 had on the property and the problems which improving it would have posed, the building of the new A9 caused no general loss of amenity to the estate as a whole.   They did however award sums for loss of amenity in respect of certain specified properties on the estate which they did find to be adversely affected by the site of the new road.   In total, the applicants were awarded £59,830 compensation in respect of their contested items of claim.   Compensation in respect of certain other items of claim apparently had been agreed by the parties before the hearing and these items were not considered by the tribunal.   While appeal lies to the Court of Session on points of law, the applicants contend that the disputed determinations were determinations of fact against which no appeal is possible.     COMPLAINTS   1.       The applicants complain of a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.           The applicants complain that the tribunal's assessment of compensation as depreciation in the market value of land at a particular date makes no allowance for inflation in the cost of future repair-works and also results in liability to capital gains tax.   The method chosen by the tribunal is alleged by the applicants to be arbitrary and illogical and fails to make provision or take into account the likely future repair-needs.   The applicants also submit that there is a substantial physical difference caused to the estate by the construction of the new roads and that the finding of the tribunal that there was no general loss of amenity is a substantial factual error.   2.       The applicants complain that the absence of a possibility to appeal is a violation of Article 6 (Art. 6) of the Convention.   The applicants also complain that the absence of such appeal and of an effective remedy for their complaints constitutes a violation of Article 13 (Art. 13) of the Convention.     THE LAW   1.       The applicants complain that they have been awarded an arbitrary and inadequate amount of compensation by the Lands Tribunal in respect of the compulsory purchase of part of their land.   They allege a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention which in the first paragraph provides:           "Every natural or legal person is entitled to the peaceful         enjoyment of his possessions.   No one shall be deprived         of his possessions except in the public interest and         subject to the conditions provided for by law and by the         general principles of international law."           The Commission finds that the applicants were deprived of their possessions within the meaning of the second sentence of paragraph 1.   The Commission finds no evidence to suggest that the purchase was not carried out subject to the conditions provided for by law and, as regards the general principles of international law, the Commission recalls that this condition does not apply to a taking by a State of the property of its own nationals (Eur.   Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 50, para. 119).   The Commission must therefore determine whether on the facts of this particular case the applicants were deprived of their property in the public interest.   The Commission recalls that because of their direct knowledge of their society and needs, the national authorities are in principle better placed to appreciate what is in "the public interest".   In their assessment in this respect, the national authorities enjoy a margin of appreciation.   The Commission notes that the compulsory purchase orders were implemented in order to carry out repairs to and realignment of a major trunk road.   The Commission is satisfied that in these circumstances the compulsory purchase measures pursued a legitimate aim in the public interest of maintaining and improving public highways.           The case-law of the Commission and Court establishes that not only must a measure depriving a person of his property pursue a legitimate aim, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised.   The Court has also stated that this requires that a fair balance be struck between the demands of public interest of the community and the requirements of the protection of the individual's fundamental rights.   This balance will not be found where the person concerned has to bear an individual and excessive burden (see e.g. Lithgow and Others judgment, loc. cit., p. 50, para. 120).           Compensation terms are material to the assessment whether such a fair balance has been struck and whether or not a disproportionate burden has been imposed on the person deprived of his property.   The taking of property without payment of an amount reasonably related to its value would normally constitute disproportionate interference which could not be considered justifiable under Article 1 of Protocol No. 1 (P1-1) (Lithgow and Others judgment, loc. cit., p. 50, para. 120). The Commission finds that this principle is also applicable in respect of compensation for other pecuniary loss or burdens imposed as a result of compulsory purchase measures.           The applicants complain in this respect that the tribunal's assessment of compensation was inadequate, illogical and arbitrary. They had argued before the tribunal that compensation in respect of their obligation in future to maintain and repair fencing should have been provided on the basis of an inflation-proofed sinking fund which would provide income to pay for repairs as they occurred.   The tribunal however had chosen to assess compensation in reference to the loss of market value suffered by the estate, taking into account the likely future expenditure involved in maintenance of fencing and other works as a guide to the amount by which notional purchasers would be likely to reduce their offers.   Consequently, the tribunal awarded £38,100 in respect of this item of compensation instead of the £147,242 which the applicants claimed.   The applicants complain that this method of assessment is not only inadequate and arbitrary, but also does not take into account inflation and makes them liable to capital gains tax.   The applicants further contend that the tribunal erred in finding no general loss of amenity to the estate and in awarding no compensation for this.           The Commission notes that the tribunal considered the applicants' suggested method of compensation but decided instead to use estimated costs of repair and renewal as a reasonable yardstick to the depreciation in value of the land taking into account the actual prime cost of the accommodation works in question, an approach accepted by other owners affected by the new A9.   The Commission does not find that this method of assessment is in principle contrary to Article 1 of Protocol No. 1 (P1-1).   The Commission also recalls that absence of any allowance for inflation, and incidence to capital gains tax were found by the Court in the Lithgow case (Lithgow and Others judgment, loc. cit. pp. 58-61, paras. 144-147 and 156) to fall within the margin of appreciation accorded to High Contracting Parties.   As regards the tribunal's decision not to award any compensation at all in respect of general loss of amenity to the estate, the Commission notes that the tribunal had itself inspected the estate and had found that, having regard to the problems existing in respect of the old A9 which had crossed the estate, no general loss of amenity had been suffered by the estate as a result of the new A9.   Moreover the tribunal did award various sums in compensation in respect of parts of the estate which could be said to have been made less attractive by the new works.   Having examined the facts of the case, the Commission finds that the terms of the compulsory purchase of the applicants' property did not infringe the principle of proportionality.           Consequently, the taking of the applicants' property was justified under the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1).           It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants complain that they are unable to appeal against the decision of the Lands Tribunal and invoke Articles 6 and 13 (Art. 6, Art. 13) of the Convention.           The Commission notes that the Lands Tribunal is a judicial body set up by statute with jurisdiction in specified areas of dispute in land valuation.           The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention does not require the Contracting States to set up courts of appeal and that the case-law of the Court and the Commission establishes that Article 6 (Art. 6-1) does not guarantee an appeal from the judgments of courts (see e.g.   Eur.   Court H.R., Delcourt judgment of 17 January 1970, Series A no. 11, p. 13, para. 25).   It follows that the applicants' complaint of an inability to appeal must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention           Article 13 (Art. 13) of the Convention guarantees a right to a remedy before a national authority when an individual has an arguable claim of a violation of the Convention.   When the alleged violation concerns the decision of a court the right to a remedy would appear to require a remedy before a higher court.   However, in light of the established case-law concerning Article 6 (Art. 6) of the Convention as stated above and Article 2 of Protocol No. 7 (P7-2) which expressly accords the right of review by a higher tribunal in criminal matters, Article 13 (Art. 13) cannot be interpreted as according such a right (see e.g.   No. 11508/85, Dec. 17.7.86, to be published in D.R.). Consequently, this provision cannot be relied on as affording a right of appeal from an inferior court to a superior court.           The Commission notes that the applicants' complaint of a violation of Article 1 of Protocol No. 1 (P1-1) arises from the decision of the Lands Tribunal of Scotland.   The Commission accordingly finds that their complaint of being unable to appeal against this decision discloses no appearance of a violation of the Article 13 (Art. 13) of the Convention.   It follows that this complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Deputy Secretary to the Commission        President of the Commission                   (J. RAYMOND)                         (C.A. NØRGAARD)