CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 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. 32372/96                       by Gerard TIMMER and 't Laakse Hoogh B.V.                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, 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 10 June 1996 by Gerard TIMMER and 't Laakse Hoogh B.V. against the Netherlands and registered on 22 July 1996 under file No. 32372/96;        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 first applicant is a Dutch national, born in 1937, and resides in Driel, the Netherlands. He is the director of the second applicant, a company with limited liability established at Driel. Both applicants are represented by Ms C.M.A. Delissen-Buijnsters, a lawyer practising in Arnhem.        The facts of the case, as submitted by the applicants, may be summarised as follows.        On 30 October 1970, B. was granted a licence under the Nuisance Act (Hinderwet) to operate a pig farm with a maximum capacity of 200 pigs. A number of conditions were attached to this licence.        In July 1972, B. sold to the first and/or second applicants a plot with a building which had until then been used as a hotel- restaurant with a private home. This plot is directly adjacent to the plot on which B. exploits the pig farm. As from the acquisition of this building, the applicants used it as a private home and office.        By decision of 26 October 1993, the Mayor and Aldermen (Burgemeester en Wethouders) of the municipality of Heteren rejected the second applicant's request to attach further conditions (aanvullende voorschriften) to B.'s licence under the Nuisance Act.        The Mayor and Aldermen found, inter alia, that, although the distance norms in the pamphlet "Cattle Farming and Nuisance Act" (brochure "Veehouderij en Hinderwet") were not met and nuisance caused by stench was thus plausible, the licence holder could not be expected to make expensive arrangements, in particular since it was not at all certain that these arrangements would lead to the results desired.        The applicants filed an appeal with the Administrative Law Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), which led to a decision of 25 March 1994 by the President of the Administrative Law Division quashing the decision of 26 October 1993.        The Mayor and Aldermen and B., as an interested party, both filed an objection (verzet) against the President's decision with the full bench of the Administrative Law Division.        By letter of 27 December 1994, the Mayor and Aldermen informed the applicants of their decision to abandon the proceedings before the Administrative Law Division, as certain measures aimed at limiting the nuisance caused by stench had to be taken. They stated that they intended to prohibit the keeping of pigs in the pigsty closest to the applicants' house and to decrease the maximum number of pigs allowed by 30. The applicants filed an appeal against this decision with the Administrative Law Division.        On 20 July 1995 the full bench of the Administrative Law Division found the objections lodged against the President's decision of 25 March 1994 well-founded, thus rendering the President's decision null and void.        On 20 October 1995, an oral hearing on the applicants' appeals against the decisions of 26 October 1993 and 27 December 1994 was held before the full bench of the Administrative Law Division during which the representatives of the applicants, the Mayor and Aldermen and B. made oral submissions.        In its decision of 13 December 1995, the Administrative Law Division rejected the appeal against the decision of 26 October 1993. It noted that the Mayor and Aldermen had taken the distance norms stated in the pamphlet Cattle Farming and Nuisance Act as a standard in their assessment of the case, which the Administrative Law Division considered an acceptable approach. It further noted that it had not been argued or appeared that the application of the norms in this pamphlet would result in an incorrect assessment of nuisance caused by stench.        After having considered the written and oral submissions made before it, the Administrative Law Division held that the agricultural destination of the area at issue was beyond doubt and that this destination was not affected by the presence of buildings with a non- agricultural use like the applicants' premises. Consequently, the Mayor and Aldermen correctly applied the relevant norms contained in the pamphlet, according to which the minimum distance between an installation and a smell-sensitive object must be 50 metres. In the present case, where it concerned 200 pigs, the minimum distance must be 63 metres according to the pamphlet.        The Administrative Law Division considered that, on grounds of constant case-law, protection against nuisance caused by stench must be offered in respect of habitation. It held that the distance at issue was to be calculated from the outside wall of the house of the second applicant and the outside wall of the most nearby pigsty.        It was found established that the distance between the house and the pigsty was smaller than the minimum distance according to the norms in the pamphlet. The Administrative Law Division considered it, therefore, necessary to examine the Mayor and Aldermen's reasons for rejecting the applicants' request.        After having considered the various oral and written submissions on this point, the Administrative Law Division accepted the opinion of the Mayor and Aldermen that the case did not concern an unacceptable situation from an environmental point of view. It held that in such a situation an order to make drastic stench-limiting arrangements was not necessary. According to the pamphlet, the making of such arrangements could be expensive whereas they could not always prevent the occurrence of nuisance.        Although the Administrative Law Division did not exclude that the expenses for making such arrangements were not as high as alleged in the proceedings, it concluded that compliance with the applicants' request would entail the making of arrangements which could not be required from the licence holder and, consequently, accepted the rejection of the second applicant's request by the Mayor and Aldermen.        Also by decision of 13 December 1995, the Administrative Law Division rejected the applicants' appeal against the decision of 27 December 1994. In this decision the Administrative Law Division limited itself to referring to its findings in its decision of the same date on the applicant's appeal against the decision of 26 October 1993. It further held that no facts or circumstances had appeared on the basis of which it should take a different decision in the present case. The Administrative Law Division therefore rejected the appeal as ill-founded.     COMPLAINTS   1.    The applicants complain under Article 6 para. 1 of the Convention that they did not receive a fair hearing in the second set of proceedings before the Administrative Law Division in that it did not give any reasons for its rejection of the applicants' appeal.   2.    The applicants complain under Article 8 of the Convention of the authorities' failure to order appropriate measures in order to limit the nuisance caused to them by B.'s nearby installation.     THE LAW   1.    The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that the Administrative Law Division rejected their appeal against the decision of 27 December 1994 by the Mayor and Aldermen without stating any reasons.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing ... by a ... tribunal      established by law."        The Commission must first determine whether Article 6 para. 1 (Art. 6-1) applies to the proceedings at issue in the present case, notably whether there was a dispute over a "right" which can be said, at least on arguable grounds to be recognised under domestic law. The dispute must be genuine and serious and its outcome must be directly decisive for the right in question. It must furthermore be ascertained that the right in question is "civil" in nature within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR, Neigel v. France judgment of 17 March 1997, Reports 1997-II, No. 32, paras. 38 and 39).        The Commission notes that the Administrative Law Division acknowledged that under Dutch law there is a right to be protected against nuisance caused by stench. There was, therefore, a dispute over a right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        As to the question whether this right can be regarded as "civil" for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission considers that the right to be protected against environmental nuisance is directly linked to the applicants' enjoyment of their property, i.e. a private home and office. Furthermore, although the applicants have not stated that they intended to sell the real property at issue, the Commission does not exclude that the existence of environmental nuisance could affect the value of this part of the applicants' patrimony.     The Commission also recalls that proceedings concerning the grant of a licence under the Nuisance Act have been held to determine a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention as regards the person requesting the issuance of such a licence (cf. Eur. Court HR, Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 16, paras. 34-36).        Although the licence holder B. was only involved as an interested party in the proceedings at issue, it could be argued that these proceedings did in fact have a certain bearing on B.'s civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention in that the outcome of the proceedings would, to a certain extent, be decisive for the question whether the conditions attached to the licence would remain unaltered or rendered more severe.        However, the Commission does not find it necessary to determine this question in the present case, as this complaint is in any event manifestly ill-founded for the following reasons.        The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention obliges the courts to give reasons for their judgments, but the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 (Art. 6), can only be determined in the light of the circumstances of the case (cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29; and Hiro Balani v. Spain judgment of 9 December 1994, Series A no. 303-B, p. 29, para. 27).        The Commission notes that the proceedings at issue concerned the question whether or not the conditions attached to the licence under the Nuisance Act granted to B. should be rendered more severe and, if so, in which manner and to what extent. The outcome of both sets of proceedings was dependent on the Administrative Law Division's assessment of facts and circumstances, which were identical in both sets of proceedings.        In these circumstances, the Commission accepts that the substance of both sets of proceedings was sufficiently similar to allow the Administrative Law Division, in its decision of 13 December 1995 on the appeal against the decision of 27 December 1994, to refer to its findings and the pertaining reasons stated in its decision on the appeal against the decision of 26 October 1993, which was rendered by the Administrative Law Division on the same day and which concerned de facto the same parties. Moreover, the Administrative Law Division did examine the separate question whether or not there were facts or circumstances on the basis of which it should reach a different finding as regards the appeal against the decision of 27 December 1994 and held that this was not the case.        The Commission, therefore, concludes that the reasoning contained in the Administrative Law Division's decision on the appeal lodged against the decision of 27 December 1994 was sufficient for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention.        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 under Article 8 (Art. 8) of the Convention of the authorities' failure to order appropriate measures in order to limit the nuisance caused by B.'s nearby installation.        Article 8 (Art. 8) of the Convention, insofar as relevant, reads:        "Everyone has the right to respect for his private and family      life, his home and his correspondence."        The Commission recalls that severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health (cf. Eur. Court HR, López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 54, para. 51).        The Commission notes in the first place that the second applicant is a company with limited liability. The question therefore arises whether a legal person as opposed to a natural person, like the first applicant, can derive any rights from Article 8 (Art. 8) of the Convention, which seeks to protect the personal sphere of individuals (cf. No. 34614/97, Dec. 7.4.97, D.R. 89, p. 163).        The Commission, however, does not find it necessary to determine this question as this part of the application is in any event manifestly ill-founded for the following reasons.        The Commission accepts that the nuisance at issue may affect the rights protected by Article 8 (Art. 8) of the Convention. The present case hinges on the question whether the authorities were under a duty to render the conditions attached to B.'s licence under the Nuisance Act more strict.        In determining the question whether a State falls short of its positive duties under Article 8 (Art. 8) of the Convention, regard must be had to the fair balance that has to be struck between the competing interests at issue and in any case the State enjoys a certain margin of appreciation (cf. Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November 1996, Reports 1996-VI, No. 24, para. 63).        The Commission notes that the licence at issue was granted two years before the applicants acquired the plot and buildings thereon from B. The Commission further notes that the authorities considered that the occurrence of nuisance caused by stench was plausible given the distance between B.'s installation and the applicants' private home and office.        However, after having found that the applicants' home and office found themselves in an agricultural area and that the nuisance complained of did not concern an unacceptable situation from an environmental point of view and after having balanced the costs B. would have to incur in making the arrangements suggested by the applicants against the uncertain prospects of success of these arrangements, the Administrative Law Division held that such arrangements could not be required from B.        In these circumstances, the Commission cannot find that the balance struck by the Administrative Law Division between the respective interests at stake is incompatible with the Netherlands Government's positive obligations under Article 8 (Art. 8) of the Convention.        It follows that this part of the application must be rejected for being 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.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber