CEDH · CASELAW;REPORTS;ENG — 28 juin 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                    Application No. 19178/91                             John Bryan                               against                         the United Kingdom                      REPORT OF THE COMMISSION                      (adopted on 28 June 1994)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-32) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-23). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 24-32). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 33-47) . . . . . . . . . . . . . . . . . . . . .9        A.    Complaint declared admissible           (para. 33). . . . . . . . . . . . . . . . . . . . .9        B.    Point at issue           (para. 34). . . . . . . . . . . . . . . . . . . . .9        C.    As regards Article 6 para. 1 of the Convention           (paras. 35-46). . . . . . . . . . . . . . . . . . .9             CONCLUSION           (para. 47). . . . . . . . . . . . . . . . . . . . 11   CONCURRING OPINION OF MR. N. BRATZA . . . . . . . . . . . . 12   DISSENTING OPINION OF MM. TRECHSEL, ROZAKIS, GEUS, REFFI AND CABRAL BARRETO   . . . . . . . . . . . . . . 14   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 15   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 16   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a British citizen, born in 1931 and resident in Warrington.   He was represented before the Commission by Mr. R.M. Napier, of Messrs Albinson Napier and Co., Warrington.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr. I. Christie of the Foreign and Commonwealth Office, London.   4.    The case concerns proceedings by which the High Court reviewed a decision, taken by an inspector appointed by the Secretary of State for the Environment, to confirm an enforcement notice which had been served on the applicant.   It raises issues under Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 29 October 1991 and registered on 9 December 1991.   6.    On 7 July 1992, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 6 para. 1 of the Convention.   7.    The Government's observations were submitted on 4 November 1992. The applicant replied on 29 December 1992 and the Government submitted further observations on 29 July 1993.   8.    On 2 April 1993 the Commission decided to hold a hearing of the parties.   The hearing was held on 14 October 1993.   The Government were represented by Mr. I. Christie, Agent. Mr. D. Pannick, Q.C., and Mr. D. Anderson, Counsel, and Ms. V. Harrison of the Department of the Environment, Adviser.   The applicant was represented by Mr. R. Drabble and Mr. E. Owen, Counsel, and Mr. R.M. Napier, solicitor.   The applicant and Mrs. Bryan were also present.   9.    On 14 October 1993 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention.   It declared inadmissible the remainder of the application.   10.   The text of the Commission's decision on admissibility was sent to the parties on 2 November 1993 and they were invited to submit such further information or observations on the merits as they wished.   No further submissions were received.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present :        MM.   C.A. NØRGAARD, President           S. TRECHSEL           A. WEITZEL           F. ERMACORA           G. JÖRUNDSSON      Mrs. G.H. THUNE      Mr.   C.L. ROZAKIS      Mrs. J. LIDDY      MM.   L. LOUCAIDES           J.-C. GEUS           M.P. PELLONPÄÄ           G.B. REFFI           M.A. NOWICKI           I. CABRAL BARRETO           B. CONFORTI           N. BRATZA   13.   The text of this Report was adopted on 28 June 1994 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is :        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   On 4 December 1989 an enforcement notice was issued and was served on the applicant by the Vale Royal Borough Council ("the Council") requiring the demolition of two brick buildings on land which the applicant had bought in 1987.   The enforcement notice recited that there appeared to the Council to be a breach of planning control in that the two brick buildings had been erected without the required planning permission.   The notice required the applicant to demolish the buildings and remove the building materials within three months.   18.   The applicant appealed to the Secretary of State for the Environment under Section 174 (2) (a),(b),(g) and (h) of the Town and Country Planning Act 1990 (TCPA), which consolidated and amended the earlier legislation.   19.   On 1 October 1990 an inspector dismissed the appeal.   He was a salaried inspector, a civil servant and an employee of the Planning Inspectorate, appointed by the Secretary of State after approval of the Lord Chancellor.   He held, inter alia, as follows:        [The appeal on ground (b)]        "12. What I need to decide in respect of this ground of appeal      is whether, as a matter of fact and degree, the buildings could,      from their appearance and layout, be considered to have been      designed for the purposes of agriculture.   I conclude, from      examination of photographs taken during construction and from      noting the alterations made since, that the Council were right      to be concerned that the appeal buildings had the appearance of      large detached houses.   The size, layout, and original external      appearance of the buildings and their detailing did little to      change that view.        13.   In my opinion, as originally constructed, the buildings      would have led any reasonable person to have concluded that he      or she was looking at the start of a small new detached housing      estate.   Indeed, that appeared to be the widely held view of many      local people, supported by the local Member of Parliament, who      were concerned to see what was being built on the edge of the      village.   The more recent construction of an, as yet, uncompleted      but similar building close to the 2 appeal buildings serves to      compound the effect.        14.   But it is the original appearance of the 2 appeal buildings      and particularly the first assessment of the Ministry of      Agriculture Fisheries and Food which convinces me that the      buildings were not requisite or reasonably necessary for the      purposes of agriculture.   Numerous features of the buildings were      more suited to houses than barns.   The original openings in      building No. 1 were said to be doorways for a veal calf unit.      But this building did not incorporate internal drainage      considered necessary for such stock.   The doorways appeared to      have been more likely to have been useful as window openings,      none reached ground level as built;   one was almost waist high      above outside ground level measured from the lower edge of the      unbonded brickwork added later.   Other features in both buildings      include the extensive use of Georgian style windows and other      windows made for domestic use.   I understand that Mr Bryan's      contacts allowed him to buy these windows cheaply.   But whatever      their source, they contribute to an impression that the buildings      look more like houses than barns.   There are other features which      add to that view.   The use of domestic style eaves and gable      barge boarding.   The residential look of the 'porch' to No 1      building.   And the [Ministry of Agriculture, Fisheries and      Food's] view about the uneconomic layout of both buildings as      originally built all add to the impression that these buildings      were not designed for agricultural purposes, albeit they have      since been modified and adapted for such a use.        15.   You said that the buildings looked like many local old      barns.   But it is my view that, as originally built, the appeal      buildings would have looked much more like houses.   They did not      look as if they had been designed for the purposes of      agriculture.   My opinion is not altered by my finding them now      being used for storing hay.   The appeal on ground (b) fails.        The appeal on ground (a)        16.   The appeal buildings lie in part of the green belt ...      They also lie within the Higher Whitley Conservation Area but      outside the village policy area for Higher Whitley shown on the      draft Vale Royal Borough Local Plan.   In my opinion, the decision      turns on the following main issues.   Whether, if the development      is inappropriate to the green belt, there are any special      circumstances to justify the granting of planning permission;      secondly, whether the appeal buildings enhance or preserve the      character or appearance of the Conservation Area.   I shall also      consider the effect of the development on the countryside      surrounding the village.      ...        17.   The appeal buildings have neither enhanced nor preserved      the appearance of this part of the Conservation Area, rather the      reverse.   Much of the pleasant nature of the Area is derived from      the grouping of the older housing around the centre and from its      rural and agricultural setting.   The 2 appeal buildings look like      part of a small estate of detached houses with access roads and      suitable garden areas.   The third building, not subject of this      appeal, exacerbates this impression.        19.   These objections amount to sound and clear cut reasons why      planning permission should be withheld.   The fact that other      buildings or buildings of a broadly similar nature, if considered      to be designed for agricultural purposes, could be built under      the provisions of the Town and Country Planning General      Development Order 1988, does not affect my decision.   The appeal      on ground (a) fails.        The appeal on ground (g)        20.   You said that demolition of the buildings and the removal      of the materials was an excessive requirement.   I do not agree.      Harm to the purpose of the green belt has been caused.   The      appearance and character of the Conservation Area has not been      either enhanced or preserved.   Encroachment on the countryside      has occurred.   Making the buildings look more like those which      might have been permitted development as you suggested could      mitigate a little of the harm I have identified.   But this is not      just a matter of cosmetics.   The main objections would remain.      In my opinion, the proper and necessary course of action is that      required by the notice.   That includes removal of materials.      Such a requirement would not preclude their re-use on site for      any possible future permitted development.   The appeal on ground      (g) fails.        The appeal on ground (h)        21.   ... Mr. Bryan wanted more time in order to erect a      replacement or replacements before demolition.   I see no need to      insist on a period which would make undue difficulty for him.      I will increase the period to 6 months. ...        22.   I have taken account of all the other matters raised,      including the possibility of your client putting up a large steel      clad building under permitted development rights, but find they      do not affect my decision."   20.   The applicant appealed against the inspector's / Secretary of State's decision under Section 289 TCPA.   In his Notice of Motion, the applicant first (grounds 1 and 2) alleged that the inspector had "erred in law in applying the wrong test in deciding whether the buildings were permitted development under the provisions of the ... General Development Order" and "in considering that the said buildings were not requisite or reasonably necessary for the purposes of agriculture when there was no evidence upon which any reasonable inspector could so find".   The subsequent grounds of appeal dealt expressly with grounds (a) and (g) of the appeal under Section 174 (2) TCPA to the Secretary of State.   21.   The appeal was dismissed by the High Court on 8 March 1991, the judge, Mr Lionel Read, Q.C., finding inter alia as follows:        "A principal argument on behalf of the applicant at the inquiry      under [ground] (b) was that the erection of the two buildings was      permitted development under the General Development Order. ...      The applicant does not challenge the inspector's decision under      ground (b).   Nevertheless paragraphs 14 and 15 of the decision      letter, where he is still dealing with that ground, are relevant      to the court's consideration of his decision on grounds (a) and      (g) ...      In my judgment ... it cannot be said that the inspector failed      to take into account the fact that the applicant might, within      his General Development Order rights, erect buildings of a      broadly similar nature.   He addressed that very consideration in      terms at paragraph 19 of his decision letter.   Because the      applicant had those rights and wanted more time to erect a      replacement or replacements, the inspector extended the      applicant's time for complying with the enforcement notice under      ground (h).      Whether the existence of these General Development Order rights      provided sufficient reason for the inspector to grant planning      permission for the buildings in fact erected, whether or not      conditioned as suggested by the applicant, was a matter for      judgment   - the inspector's judgment.   Whether another decision-      maker would have reached the same conclusion as did this      inspector is not to the point.   Nor is the view of this court,      which does not sit on appeal from the judgment of inspectors,      relevant.   I am unable to say that there was anything irrational      in the inspector's decision.   In particular, the question whether      the alterations proposed to a building were, as he evidently      thought, a 'matter of cosmetics' and would not meet the main      objections was entirely a matter of planning judgment for him.      It is to be remembered that, in order to stay within his General      Development Order rights, the applicant must erect replacement      buildings which, by their appearance and layout, could be      considered as designed for the purposes of agriculture.   If they      are, their effect on the Green Belt, the countryside and the      Conservation Area is irrelevant to the exercise of that right.      That does not, however, in my judgment mean that the inspector      acted irrationally in concluding that the buildings in fact      erected without permission under the General Development Order      were objectionable and should be demolished.   In the result, I      find no error of law and I dismiss the application."   22.   At the hearing held before the Commission on 14 October 1993, the applicant's representatives stated that, although they had not represented the applicant before the High Court, they surmised that the challenge to the inspector's ground (b) reasoning had been raised in the Notice of Motion and then abandoned at the hearing because of the limited jurisdiction of the High Court.   23.   Leave to appeal to the Court of Appeal was refused.   The Court of Appeal, on 11 June 1991, also refused leave to appeal.   B.    Relevant domestic law   24.   By reason of Article 3 and Class A of Part 6 of Schedule 2 to the General Development Order 1988, planning permission is granted for the following development:        "A.   The carrying out on agricultural land comprised of an      agricultural unit of -        (a)   works for the erection, extension or alteration           of a building, or        (b)   any excavation or engineering operations, reasonably           necessary for the purposes of agriculture within that unit."   25.   Planning permission granted by the General Development Order is known as deemed planning permission.   Development is not permitted by Class A by reason of paragraph A.1(c) if "a building, structure or works not designed for the purposes of agriculture would be provided on the land".   26.   Section 64 TCPA provides that application may be made to the local authority for a determination of whether planning permission is required for proposed operations on land.   27.   Section 174 (2) TCPA provides that an appeal against an enforcement notice may be made to the Secretary of State on any of the following grounds:        "(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;      ...      (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."   28.   Section 175(3) TCPA provides that if an appellant of the local authority desires, the Secretary of State shall give each of them the opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.   Where such a person has determined an appeal, his decision shall be treated as that of the Secretary of State.   29.   Section 289 TCPA provides for appeals against a decision of the Secretary of State under Section 174.   An appeal may be made to the High Court on a point of law, or the Secretary of State may be required to state a case for the opinion of the High Court (Section 289 (1) TCPA).   30.   At the hearing before the Commission on 14 October 1993, the applicant asserted and the Government accepted that a point of law includes a review as to whether a decision based on a finding of fact is perverse or irrational.   However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority (cf. para. 21 above).   31.   As an appeal to the High Court under Section 289 (1) is on a point of law, the High Court has no power to receive further evidence on primary facts (Green v. Minister of Housing and Local Government [1963] 1 All ER 578).   Halsbury's Statutes of England and Wales, Fourth Edition, Vol. 46 (1990 Re-issue) describes many of the cases on the question of whether a point is one of fact or of law as "irreconcilable" (p. 836).   Halsbury's Laws of England states that "if there is no evidence for a particular finding or if the tribunal does not take into account at all a relevant consideration, there could well be grounds of appeal raising a question of law.   The contention that a tribunal has failed to give adequate weight to evidence or sufficient consideration to a particular circumstance does not afford such grounds; and the weight which a tribunal gives to a particular piece of evidence on a particular consideration is a matter for that tribunal" (Halsbury's Laws of England, Fourth Edition, Vol. 46 (1992 Re-issue), p. 698).   In one recent case, a brick building had been erected on agricultural land.   The local authority issued an enforcement notice against which the landowner appealed under grounds (a), (b), (c), (g) and (h) of Section 174(2) TCPA.   An inspector determined the appeal, largely against the landowner.   The High Court judge who heard the landowner's further appeal under Section 289 TCPA had regard to an affidavit submitted on behalf of the landowner, considered that the inspector's conclusion that the building was not "designed for the purposes of agriculture ..." was perverse, and remitted the question to the Secretary of State.   The Secretary of State appealed to the Court of Appeal.   The Court of Appeal recalled:        "An appeal to the High Court under Section 289 lies on a point      of law only.   The inspector is responsible for finding facts ...      [O]n an appeal to the High Court, the court should not itself      receive evidence unless it is argued that the inspector has not      properly summarised, or has disregarded, some material evidence.      That is not suggested in his case."        It continued:        "... So the exercise [the judge] was carrying out was ... finding      an explanation for the cavity walls and then ... turning that      into a finding of fact that was in fact the reason for the cavity      walls.      In my view, the judge was not entitled to make such a finding of      fact.   The inspector had not found that; he had found that the      cavity walls were not necessary for the purpose of a building for      agricultural use in connection with this holding. ...      I therefore conclude that the judge was not justified in      describing the inspector's finding that the building was not      designed for agricultural purposes as perverse.   On the contrary,      in my view this was a finding of fact which, on the evidence      before him, the inspector was entitled to make." (Clarke v.      Secretary of State for the Environment and another [1992] 3 PLR      146).   32.   According to The Planning Inspectorate Executive Agency Framework Document (1992), the Planning Inspectorate serves the Secretary for State on appeals and other casework under planning and allied legislation.   Through the work of the Agency, the policies of the Secretary of State are taken forward.   Disputes between individuals and public authorities are resolved against the background of these policies.   In processing planning appeals, the staff of the Inspectorate act on behalf of the Secretary of State.   Inspectors, exercising their own independent judgment, decide cases or make recommendations to the Secretary of State.   In determining planning appeals, inspectors act in a quasi-judicial capacity, and are required to comply with the various procedural rules for the conduct of enforcement appeals (the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1981, and the Town and Country Planning (Enforcement) (Inquiries Procedure) Rules 1981).   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   33.   The Commission has declared admissible the applicant's complaint that the review undertaken by the High Court of the decision of the inspector was not of sufficient scope to comply with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   B.    Point at issue   34.   The issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   35.   Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law."   36.   The applicant considers that Article 6 para. 1 (Art. 6-1) applies to the proceedings, and the Secretary of State's inspector did not satisfy the criteria of independence and impartiality necessary to comply with the provision as he is a salaried employee and an individual case can be removed from him at any stage.   He also considers that the review by the High Court, which is limited to points of law, is not able to, and did not in this case, deal with the central factual inferences which the inspector drew from the primary facts.   37.   The Government do not accept that the proceedings determined the applicant's civil rights, but consider that even if they did, the quasi-judicial proceedings before the inspector complied with Article 6 (Art. 6).   They further consider that the subsequent review by the High Court was in any event of sufficient scope to comply with the provision.   38.   The Commission recalls that the right of property is clearly a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and the enforcement notice issued by the local authority and the subsequent enforcement proceedings were directly concerned with the way in which the applicant was entitled to use his land (cf. Eur. Court H.R., Zander judgment of 25 November 1993, Series A no. 279-B, para. 27, with further references).   Consequently, the proceedings in the present case determined a "civil right".   39.   As to the role of the inspector in the proceedings, the Commission notes that it is not called on to determine whether the inspector conducted the proceedings fairly, as there has been no suggestion from the applicant that the proceedings were unfair.   The Commission sees no reason to dissent from the Government"s contention that the proceedings before the inspector complied with the requirements of fairness.   40.   The Commission must, however, consider whether the inspector in determining the appeal constituted the "independent and impartial tribunal established by law" which Article 6 (Art. 6) requires.   41.   The function of the inspector is to determine matters within his competence on the basis of rules of law, following proceedings conducted in a prescribed manner (see para. 32 above).   He therefore comes within the concept of a "tribunal" within the substantive sense of the expression as used in Article 6 para. 1 (Art. 6-1).   Moreover, the tribunal was one "established by law", that is, by the Town and Country Planning Act 1990.   42.   As to the independence and impartiality of the inspector, the Commission notes that inspectors are chosen from salaried staff of the Planning Inspectorate.   The Planning Inspectorate serves the Secretary of State in the furtherance of the Secretary of State's policies. Inspectors deciding planning appeals do so on behalf of the Secretary of State, regardless of whether they are salaried employees or not. Whilst the Secretary of State and his inspector are not parties to the dispute as such, the Commission finds that the fact that the Secretary of State's policies can be at issue in appeals means that the inspector cannot have the independence necessary for Article 6 (Art. 6) of the Convention.   Moreover, a case can be removed from an inspector's jurisdiction even after he has been seised of it.   43.   Given that the proceedings before the inspector did not comply with Article 6 (Art. 6) of the Convention because of his lack of independence, the Commission must consider whether appeal to the High Court was consistent with Article 6 para. 1 (Art. 6-1).   This will only be the case if the appeal was 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; Zumtobel judgment of 21 September 1993, Series A no. 268-A, para. 29).   44.   The Commission recalls that the applicant's appeal against the enforcement notice in the present case was heard by an inspector appointed by the Secretary of State.   The inspector was able to consider all matters on that appeal, whether they related to facts or to law, by virtue of Section 174 (2) TCPA.   The subsequent appeal to the High Court, however, was limited to points of law, and the Commission must decide whether, in the present case, that limitation deprived the High Court of the "full jurisdiction" required by Article 6 (Art. 6) of the Convention.   45.   The Commission notes that the applicant raised the matter of the inspector's reasoning under ground (b) of Section 174 (2) TCPA in his Notice of Appeal, but that he appears to have abandoned his challenge before the High Court.   Whilst it is true that the judge referred to some of the inspector's ground (b) findings in determining the appeal against the ground (a) and (g) reasoning, he was nevertheless not ultimately required to consider the ground (b) challenge, and so formally did not have to review against the test of perversity or irrationality the question whether the "matters" alleged in the enforcement notice did, or did not, constitute a breach of planning control.   46.     The Commission recalls that in the above-mentioned Zumtobel case the European Court of Human Rights referred to the "respect which must be accorded to decisions taken by administrative authorities on grounds of expediency" (at para. 32).   The challenge to the inspector's ground (a) reasoning concerned questions which indeed call for respect on the "grounds of expediency" as they involved the application of the panoply of policy matters such as development plans, and the facts that the property was situated in a green belt and a Conservation Area.   The ground (b) challenge, by contrast, would have raised matters of a more factual nature in that they would have gone directly to questions of whether the applicant had erected a building which fell within the General Development Order, and so had the benefit of deemed planning permission.   The submissions actually relied on before the High Court were dealt with point by point.   In the absence of an argued ground (b) challenge, it cannot be assumed that a review of whether or not the inspector's findings of fact were perverse or irrational would have been inadequate.   Moreover, given the carefully reasoned nature of the Inspector's report, the absence of dispute as to primary facts as distinct from factual inferences and the planning context of the case, there is nothing to indicate that the limited review available was inadequate in the particular circumstances of this case.   The ground (g) and (h) challenges, which both expressly leave open a discretion to the local authority (a determination of whether the steps required exceed what was "necessary" under ground (g) or, under ground (h), whether any periods specified fell short of what "should reasonably" be allowed), also involved the consideration by the inspector of matters closely linked to policy considerations.        CONCLUSION   47.   The Commission concludes, by 11 votes to 5, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 46).   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                    (Or. English)                 CONCURRING OPINION OF Mr. N. BRATZA        I share the view of the majority of the Commission that, on the facts of the present case, the only challenge to the enforcement notice which the applicant pursued in the High Court related to matters of planning policy and that, consistently with the Court's reasoning in the Zumtobel case, Article 6 does not in any event require that a court should have the power to substitute its view for that of the administrative authorities on matters of planning policy or "expediency".   It is said that the reason why the applicant did not pursue his appeal under ground (b) of Section 174(2) of the 1990 Act may have been the fact that the court's powers of review were too limited to justify pursuing the appeal.   However, as the Commission correctly notes (para. 22) this is a matter of surmise only.   The reason for withdrawing the ground might equally have been a recognition on the part of the applicant that the primary facts found, and the conclusion reached by the Inspector on the basis of those facts, were so clearly correct as to be unassailable, however wide the review powers of the High Court.        However, I also find that there has been no violation of Article 6 in the present case on the broader ground that the powers of review of the High Court under Section 289 of the 1990 Act are sufficiently wide to satisfy the requirement held by the Court to be inherent in Article 6 that the judicial body determining the applicant's civil rights and obligations should have "full jurisdiction".        It appears to me that the requirement that a court or tribunal should have "full jurisdiction" cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned.   Whether the power of judicial review is sufficiently wide to satisfy the requirements of Article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review.        In my view the powers of review of the High Court, when combined with the statutory arrangements under the 1990 Act for appealing against an enforcement notice, satisfy the requirements of Article 6 para. 1.        So far as the statutory arrangements are concerned, Section 174 of the 1990 Act provides that an appeal against an enforcement notice served by a local authority may be made to the Secretary of State on grounds, inter alia, that the matters alleged in the notice do not constitute a breach of planning control.   Section 175(3) of the Act provides that if an appellant or the local authority desires, the Secretary of State shall give each of them the opportunity of appearing before and being heard by a person appointed by the Secretary of State ("the Inspector") and power is conferred on the Inspector to determine the appeal.        In determining planning appeals Inspectors act in a quasi- judicial capacity and in accordance with prescribed procedures, full powers being conferred on both parties to appear, with or without legal representation, adduce evidence, both written and oral, and make submissions of both law and fact.   Further, the appeal results in a reasoned decision letter.        In paragraph 42 of the Report the Commission, while accepting that the Inspector is a "tribunal" within the substantive sense of the expression as used in Article 6 para. 1 and that such a tribunal is one "established by law", concludes that an Inspector does not satisfy the requirement of independence and impartiality:   it is correctly pointed out that Inspectors are chosen from salaried staff of the Planning Inspectorate, which serves the Secretary of State in the furtherance of his policies, and that while the Secretary of State and his Inspector are not parties to the dispute as such, the fact that those policies can be in issue on appeals means that the Inspector cannot have the independence necessary for Article 6 of the Convention.        While this is true, there is equally nothing to suggest that, in finding the primary facts and in drawing conclusions and inferences from those facts, an Inspector acts anything other than independently, in the sense that he is in no sense connected with the parties to the dispute or subject to their influence or control;   his findings and conclusions are based exclusively on the evidence and submissions before him.        An appeal is from an Inspector's decision to the High Court under Section 289 of the Act "on a point of law".   As appears from the Commission's Report, this does not mean that the Inspector's findings of fact or the inferences drawn by him from those facts are free from review by the Court.   The Court cannot substitute its own findings of fact or its own inferences from those facts for those of the Inspector. However, the Court can set aside a factual finding by an Inspector if that finding is unsupported   by any evidence before him.   The Court can also set aside inferences drawn by the Inspector from those facts if those inferences are perverse or irrational in the sense that no Inspector properly directing himself could reasonably have drawn such inferences.        Applying these principles to the circumstances of the present case, the High Court could have quashed the decision of the Inspector if it could have been shown that there was no evidence before him on which he could have found that the building did not, as originally built, incorporate the internal drainage necessary for a veal calf unit; that none of the alleged doorway openings reached ground level and that one was almost waist high above outside ground level;   that other features included the extensive use of Georgian style windows and other windows made for domestic use;   that domestic style eaves and gable barge boarding had been used; and that the building had a residential looking "porch".   Equally the High Court could have quashed the decision of the Inspector if it had been shown that no Inspector properly directing himself could reasonably have concluded on the basis of these primary facts that the building was not, as originally built, designed for the purposes of agriculture.        In my view this power of review of the High Court, combined with the statutory procedure for appealing against an enforcement notice, is sufficient to meet the requirement of "full jurisdiction" inherent in Article 6 para. 1 of the Convention.                                                    (Or. English)         DISSENTING OPINION OF MM. TRECHSEL, ROZAKIS, GEUS,                    REFFI AND CABRAL BARRETO        We disagree with the finding of the majority that this case discloses no violation of Article 6 of the Convention.        In the present case, a key element of the applicant's appeal to the Secretary of State and subsequently of his notice of appeal to the High Court was that the building he had erected was indeed a barn designed and intended for agricultural use such that it had the benefit, without further authority, of deemed planning p