CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.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. 22245/93                     by M.J.C. and J.E.C.                     against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 6 April 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                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 12 May 1993 by M. J. C. and J. E. C. against the United Kingdom and registered on 16 July 1993 under file No. 22245/93;        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 applicants are a husband and wife, born in 1957 and 1959 respectively.   They live in Whitstable in Kent, and are represented before the Commission by Mr. G.J. Hewitt, solicitor, of Peterborough.   The facts of the case may be summarised as follows:   The particular circumstances of the case        In 1986 the applicants bought a piece of land in Kent.   It had the benefit of a 1961 outline planning consent for the demolition of one house and the erection of a new dwelling on the same site.   The house had been demolished in 1963, but no house had been built.   The applicants paid £14,500 for the land.   A dispute ensued between the applicants and the local authority about the validity of the 1961 planning permission, and at the same time the applicants applied for planning permission for a new house.   The application was refused, but in June 1987 the authority notified the applicants that the original permission was regarded as valid.        In November 1987 the local authority made an order under Section 45 of the Town and Country Planning Act 1971 (TCPA), revoking the 1961 permission.   The revocation order was confirmed, after a public enquiry, by the Secretary of State on 17 August 1989.        The applicants gave notice of a claim for compensation under Section 164 of the TCPA.   On 27 March 1991 the Lands Tribunal gave an interim award of £108,626.84, consisting of £106,750 depreciation on value of the land and £1,876.84 abortive design expenditure.   The member of the Lands Tribunal valued the land with the benefit of the 1961 permission at £115,000, and without the permission at £8,250.   Applying the assumption in Section 164(4) TCPA, that is, if one were to assume that the house which had been demolished in 1963 were still standing, he put the value of the land after the revocation at £70,000.   In such a case, the compensation would be £45,000 (£115,000 less £70,000).        The local authority appealed to the Court of Appeal which, on 20 March 1992, gave judgment in the authority's favour.   The Vice-Chancellor pointed out that the authority's argument involved:        "...as a necessary corollary, the proposition that in      assessing compensation for the revocation of permission to      demolish and rebuild a house, the valuer must assume that      permission to rebuild the house would be granted.   On its      face the proposition seems bizarre."        The House of Lords, to which the applicants appealed (with leave), also found in the local authority's favour.   Lord Oliver of Aylmerton, giving the judgment of the House, recalled that the terms of Section 164(4) were mandatory.   He also referred to the principle that an intention to take away the property of a subject without giving him a legal right to compensation is not to be imputed to the legislator unless expressed unequivocally. He found that the terms of Section 164(4) were entirely unequivocal.   He accepted that the applicants had suffered hardship in being deprived of a substantial part of the value represented by the revoked permission, but that could not affect the proper way to construe the statute.        Lord Oliver referred to the legislative history of Section 164(4).   The precursor to Section 164(4) in the Town and Country Planning Act 1947 was perfectly logical in the context of its initial drafting, as compensation for depreciation in the value of land in consequence of the revocation of planning permission was only payable if a development charge had been paid by the landowner in respect of the development covered by the revoked permission.   No development charge was payable in respect of existing use developments falling within Schedule 3 to the 1947 Act (replaced by Schedule 8 to the TCPA).   Accordingly, it had been necessary to provide in the calculation of the amount of depreciation a base value which assumed the existence of a permission for existing use development.   Development charges had been abolished in 1953 and 1954, but the provision for compensation was only amended by deletion of the reference to development charges: what became Section 164(4) was expressly re- enacted.   Lord Oliver could not, in such circumstances, accept an argument that the old provision had not been removed and that, shorn of its initial context, it had taken on a meaning it was never intended to have.   He concluded:        "... [it is impossible to escape the conclusion] that the      clear purpose of the legislature was to limit the amount of      compensation payable for depreciation due to a revocation      of planning permission by fixing a base value for the land      in all cases on the footing that planning permission for      any class of Schedule 8 development would be granted.   That      must include, however arbitrary it may seem, even      development of that very class which was the subject matter      of the revoked permission.        The conclusion is not one which I embrace with any      enthusiasm and it may well be that the particular      circumstance of the revoked permission being the very      permission comprehended in the statutory assumption was not      one which the legislature foresaw as ever likely to occur.      But, whilst this provides a sound reason for the hope ...      that Parliament may look again at ... 'an anachronistic      relic', it cannot provide an avenue for escape from the      clear and express words of the Section.   I would dismiss      the appeal."        The applicants accordingly received compensation of £45,000.     Relevant domestic law        Section 45 TCPA permits a local planning authority to revoke or modify planning permission, in whole or in part, "[i]f it appears to the local planning authority, having regard to the development plan and to any other material considerations, that it is expedient to revoke or modify ...", subject to certain conditions.   In particular, the conditions require confirmation of the order by the Secretary of State.        As to compensation, Section 164(1) TCPA provides for compensation to be paid where planning permission is revoked or modified under Section 45 TCPA.        Section 164(4) TCPA provides for compensation to be calculated on the basis that it is assumed "that planning permission would be granted for development of any class specified in Schedule 8".   Schedule 8 refers to "the rebuilding ... of any building which was inexistence on [1 July 1948]; the rebuilding as often as occasion my require on any building erected after [1 July 1948] which was in existence at a material date; ...", subject to certain conditions.   COMPLAINTS        The applicants allege a violation of Article 1 of Protocol No. 1.   They state that they have been denied the compensation to which they were entitled at law because of a manifest error in the legislation.   They point out that Section 164(4) was intended to protect the interests of a landowner and to ensure that, if planning permission were revoked, the owner would retain the right to rebuild a house without a development charge, and that the possibility of a local authority revoking planning permission to rebuild after demolition of the first house but before erection of the new house was not intended by the legislator.        The applicants accept that the price they paid for the plot was relatively low because of some uncertainty as to the validity of the 1961 planning permission, but point out that they did eventually establish that the permission was valid.        The applicants also allege a violation of Article 13 of the Convention.   They submit that the failure to amend the 1947 provisions after the abolition of the development charge has deprived the applicants of the remedy to which they would otherwise be entitled and which Parliament intended them to have.       THE LAW   1.    The applicants allege a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.   Their complaint relates not to the revocation of the planning permission as such, but to the way in which compensation to which they were entitled was calculated in this case.   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 conditions 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."        The Commission notes that the applicants bought their land in 1986 with the benefit of the planning permission which had been granted in 1961.   Although there was dispute as to the validity of that permission, and although the applicants unsuccessfully applied for a fresh grant of planning permission, the 1961 permission was the subject matter of the revocation of November 1987 which was eventually confirmed by the Secretary of State on 17 August 1989.   In these circumstances the Commission has no reason to doubt that the applicants' rights under Article 1 of Protocol No. 1 (P1-1) were thereby interfered with, and thus the question of whether the applicants received adequate compensation itself falls within the scope of the provision.        The Commission finds that the interference in question was not a formal expropriation of the applicants' property, nor was it a de facto deprivation.   One aim of planning legislation is to prevent undesirable development by controlling the use to which property is put.   Whilst the value of the applicants' property was affected by the revocation of the planning permission, the reduction in value was as a result of the new limits on the control of the property.        Accordingly, the interference in the present case must be considered as a control of the use of property falling within the scope of the second paragraph of Article 1 (Art. 1-2) (cf. Eur. Court H.R., Pine Valley and others judgment of 29 November 1991, Series A no. 222, ("Pine Valley judgment"), p. 25, para. 56).        The Commission is not required to consider the lawfulness and purpose of the revocation of the planning permission as the applicants complain of the compensation provisions rather than the revocation (and have accordingly submitted no documentation in this respect) and in any event they have not complied with the requirements of Article 26 (Art. 26) of the Convention in that they did not challenge the revocation in the High Court.        The Commission must, however, determine in the context of the proportionality of the interference, whether the compensation provisions in the present case were such as to render the interference disproportionate.        The Commission first recalls that even where total deprivation of possessions is at issue, under the second sentence of the first paragraph of Article 1, Article 1 (Art. 1-1) does not guarantee a full right to compensation in all circumstances (Eur. Court H.R., James and Others judgment of 28 February 1986, Series A no. 98, p. 36, para. 54).   Compensation terms are, however, material in assessing where the contested legislation respects a fair balance between the various interests involved (ibid.).        The Commission recalls that the applicants bought land with the benefit of a 1961 planning permission in 1986.   They paid £14,500 for it, and accept that the price was relatively low given the uncertainty as to the validity of the planning permission.   At the end of the compensation proceedings, they were awarded compensation of £45,000.   Whilst it is true that the Lands Tribunal initially awarded a considerably larger sum, it is plain from the judgments of the Court of Appeal and the House of Lords that the Lands Tribunal did not have the statutory power to award that higher amount, because of the anomaly in the Town and Country Planning Act 1971 about which the applicants complain.          Notwithstanding the reasons that led to the "bizarre" compensation provisions which were applied in this case, the Commission finds that the compensation actually paid to the applicants was not so inadequate that it could be said that a fair balance has not been struck in this case.        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.   2.    The applicants also allege a violation of Article 13 (Art. 13) of the Convention.        The Commission has declared inadmissible the applicants' claims under Article 1 of Protocol No. l (P1-1) as being manifestly ill-founded.   It also finds that those claims are not "arguable" within the meaning of that term ascribed to it by the European Court of Human Rights (cf., Eur. court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 24).        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.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)