CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 28892/95                       by McKone Estates Limited                       against Ireland          The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mr.    M.P. PELLONPÄÄ, Acting President            Mrs.   J. LIDDY            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            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 25 July 1995 by McKone Estates Limited against Ireland and registered on 6 October 1995 under file No. 28892/95;        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 residential development company based in Dublin and is represented before the Commission by Thomas Montgomery and Company, solicitors practising in Dublin.        On 14 March 1977 the Minister for Local Government in Ireland granted planning permission for a development of 455 houses with a provision for a local shopping centre and a school ("development A") on 60 acres at Cooldrinagh, Lucan, County Dublin ("the site"). This permission overruled an earlier refusal of planning permission on 29 July 1976 by Dublin County Council. The planning permission was subject to a condition that the developer enter into an agreement with the County of Dublin and the adjoining County of Kildare regarding the sewage and surface water pipe drainage arrangements including the disposal of foul sewage through the treatment works at Leixlip in County Kildare ("the drainage"). The developer was also required to agree with the two county councils a contribution towards the costs of the drainage and the cost of providing a public water supply. In default of agreement the amount of contribution would be determined by the Minister for Local Government.        On 1 January 1977 the 1976 Planning Act ("the 1976 Act") entered into force. This established an appeals board (An Bord Pleanala) and introduced a provision for a withering of planning permissions seven years from the date such permission was granted.        In November 1977 the applicant purchased the site with the benefit of the planning permission, intending to carry out development A.        The applicant experienced considerable difficulty in attempting to discuss the drainage of the site with either Kildare or Dublin County Councils. By a letter of 13 July 1977, Kildare County Council stated that they did not propose to enter into any negotiations with the applicant concerning drainage. On legal advice the applicant submitted simultaneous planning applications regarding the drainage, to Dublin and Kildare County Councils in August 1979. These planning applications were refused by both Councils, at first instance in October 1979 and further refused after appeal to An Bord Pleanala on 5 September 1980.        On 24 April 1981, pursuant to the provisions of Section 55 of the Local Government (Planning and Development) Act 1963 ("the 1963 Act"), the applicant served on both Kildare and Dublin County Councils a compensation claim for three million pounds for the loss in value of the site due to the inability to enforce the planning permission.        On 20 October 1981, the official property arbitrator commenced a hearing of the claim for compensation against Kildare County Council. After a three day hearing, and at the request of counsel for Kildare County Council, a case was stated to the High Court. In a judgment of 24 June 1983 it was held, inter alia, that the applicant had a prima facie right under Section 24 of the Public Health (Ireland) Act 1878 ("the 1878 Act") to require Kildare County Council to grant permission for the connecting up of the sewer, subject to the imposition of such terms and conditions as may be agreed, or as may, in default of agreement, be determined by the Court or by arbitration. Further it was held that the application for compensation was premature as the applicant had failed to assert and exhaust the rights open to it under the 1878 Act.        In the interim, in March 1983, the applicant had submitted revised planning applications concerning the development and drainage of the site to both Kildare and Dublin County Councils. Both applications were refused at first instance in July 1983 and on appeal on 8 February 1984. The reasons given included a lack of capacity at the sewage treatment works to cater for the proposed development A.        In conformity with the judgment of 24 June 1983, the applicant made an application to appoint an arbitrator.        Prior to the commencement of the arbitration, there was an interlocutory hearing, at which it was held that the appointment of an arbitrator was precipitate and therefore invalid. The applicant was advised not to appeal this order, as by the time the appeal could be heard by the Supreme Court and, if necessary the matter returned to arbitration, the planning permission would have lapsed in any event, it being the end of the seven year period.        On 13 March 1984 the planning permission, which had been granted seven years previously on 14 March 1977, expired in accordance with the 1976 Act.        On 4 April 1985 an award of 12,500 IR£ was made to the applicant by the Official Arbitrator in respect of the refusal by Kildare County Council to allow the drainage connection.        In July 1988 five acres of the applicant's land were made subject to a compulsory purchase order, due to the building of the Leixlip bypass. In July 1989 Kildare County Council acquired these five acres by agreement.        In January 1989 the second phase of the Leixlip Treatment Plant was commissioned, thereby increasing by more than 100% the capacity of the sewage works.        On 15 December 1989 the applicant sought planning permission for a residential development containing 252 houses on 40 acres of the site ("development B"). Permission was granted at first instance by Dublin County Council on 25 April 1990, subject to certain conditions. This decision was appealed by various third parties and the applicant. On 31 January 1991 a refusal to grant permission was issued by An Bord Pleanala, stating that the site fell within an area devoted to agriculture under the County Development Plan 1980, there were no detailed drainage plans and that development B would interfere with the use of the aerodrome and the safety of aircraft in the area.        On 30 July 1991 the applicant served on Dublin County Council a compensation claim under Section 55 of the 1963 Act, for IR£ 1.75 million, representing the alleged reduction in value of the site after the refusal of planning permission. The claim was made out of time and the applicant thus, on 21 November 1991, sought leave to extend the time limit. The application to the Circuit Court was heard on 26 May 1992 and an Order extending the time limit by 14 days was made. This Order was appealed by Dublin County Council to the High Court, who in turn stated a case to the Supreme Court on 19 May 1993. The Supreme Court gave judgment on 1 June 1995 and the Order of the High Court, affirming the Supreme Court judgment, was made on 13 July 1995. The effect of the judgment and the order of the High Court wasto rule that the applicant had no valid claim under Section 55 of the 1963 Planning Act ("the 1963 Act"), as the relevant parts of this act had been repealed by the Local Government (Planning and Development) Act 1990 ("the 1990 Act"), prior to the refusal of planning permission on 31 January 1991.   COMPLAINTS        The applicant complains under Article 6 concerning the length of proceedings. The applicant further complains that there was no effective remedy in breach of Article 13, in particular no action lay in negligence against the Minister or the Local Authority and there was no claim for compensation under the 1963 Act. The applicant considers it was the subject of discrimination under Article 14 and states that the refusal of planning permission amounted to a deprivation of the peaceful enjoyment of property in violation of Article 1 of Protocol No. 1. The applicant also invokes Articles 16, 18 and 50.   THE LAW   1.    The applicant alleges violations of Articles 6, 13, and 14 (Art. 6, 13, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) in connection with the conditional planning permission relating to development A. However, the final decision in this connection was on 4 April 1985, when the applicant was awarded compensation by the Official Arbitrator. This final decision is more than six months before the date on which the application was submitted on 25 July 1995.        It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant complains under Article 6 (Art. 6) about the length of the proceedings concerning development B. Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a fair and public hearing within a      reasonable time ..."        The Commission notes that the planning permission for development B was sought on 15 December 1989, permission was granted by Dublin County Council on 25 April 1990 and then refused on appeal by An Bord Pleanala on 31 January 1991. The period of time from first request to final refusal of planning permission was 13 months. The applicant commenced compensation proceedings on 30 July 1991 and the final order of refusal from the High Court (following the Supreme Court judgment) was on 13 July 1995. The total duration from the application of planning permission to the final refusal of compensation was of 5 years 7 months. The Commission notes that these proceedings consisted of hearings by the Circuit Court, the High Court and the Supreme Court and a final order by the High Court.        In the circumstances, and even assuming that Article 6 (Art. 6) applies from 15 December 1989, when the applicant applied for planning permission, to the final refusal of compensation on 13 July 1995, the Commission does not consider the proceedings exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.        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.   3.    The applicant complains under Article 1 of Protocol No. 1 (P1-1) that the refusal of planning permission for development B deprived it of the peaceful enjoyment of its possessions. 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 applicant applied for planning permission for development B and this request was refused.   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).   When the applicant applied for planning permission in December 1989 planning permission for development A had already lapsed such that the applicant cannot claim that it was deprived of the right to build on the land. Even considering the position as at November 1977, when the applicant bought the land with planning permission, it cannot be said that the applicant acquired an absolute entitlement to develop as it must have been aware that the 1976 Act provided for planning permission to wither after seven years. Accordingly the refusal to grant planning permission for development B did not involve the removal or alteration of a valid planning permission.        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.   4.    The applicant complains that the site was marked on the Development Plan of Dublin County Council as agricultural land. The applicant further complains that the absence of transitional provisions in the 1990 Act defeated the applicant's claim under the 1963 Act. The applicant invokes Article 14 (Art. 14).        Article 14 (Art. 14) of the Convention provides as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Commission recalls that in Pine Valley Developments Ltd and Others v. Ireland (Eur. Court HR, judgment of 29 November 1991, Series A no. 222, p. 27 para. 64) it was held that there was a violation of Article 14 in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1), where there was a difference of treatment between two of the applicants and other holders of permission in the same category. There is however no such discrimination in the present case: the zoning of the land as agricultural took place prior to the application for planning permission and there is no evidence that the applicant was treated any differently from any other company or individual seeking planning permission in a similar site.        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.   5.    The applicant complains under Article 13 (Art. 13) that it had no action in negligence against the Minister or the Local Authority and no claim for Compensation under the 1963 Act.        Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31). In the present case, the Commission has rejected the substantive claims as disclosing no appearance of a violation of the Convention. For similar reasons, they cannot be regarded as "arguable". In any event Article 13 (Art. 13) cannot be invoked to require a particular content of the substantive provisions of civil law.        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.   6.    The applicant also alleges violations of Articles 16, 18 and 50 (Art. 16, 18, 50) of the Convention.        The Commission finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols, and that this part of the application must be rejected in accordance with Article 27 (Art. 27) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                               M. P. PELLONPÄÄ      Secretary                                  Acting President to the First Chamber                          of the First Chamber