CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 janvier 1998

.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. 28488/95                       by Richard James Joseph McGONNELL                       against the United Kingdom        The European Commission of Human Rights sitting in private on 22 January 1998, the following members being present:              MM     S. TRECHSEL, President                  J.-C. GEUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, Secretary to the Commission          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 29 June 1995 by Richard James Joseph McGONNELL against the United Kingdom and registered on 9 September 1995 under file No. 28488/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      23 April 1997 and the observations in reply submitted by the      applicant on 18 June 1997;        Having deliberated;        Decides as follows:   THE FACTS   A.    The particular circumstances of the case        The applicant is a British national.   He was born in 1955.        In October 1982 the applicant purchased a vinery (glasshouses) and a plot of land.   In 1983 he applied for permission to build a dwelling on the land.   Permission was refused and he lost an appeal in May 1984.        In May 1986 the applicant, who was in financial difficulties, moved to live in a flower packing shed on his property as a temporary measure.   His problems were compounded by frost and hurricanes in 1987 - 1989, which destroyed part of his glasshouses together with the crops.        On 28 June 1990 a Detailed Development Plan Number 6 (DDP No. 6), under Section 6 (1) of the Island Development (Guernsey) Law 1966 as amended ("the 1966 Law"), was approved.   This plan covered the applicant's land.        Prior to the approval of DDP No. 6 there was a Public Planning Inquiry, in accordance with section 10 of the 1966 Law.   At that inquiry, the applicant was represented by an advocate.   The applicant's representations that he be allowed a dwelling place on the land were rejected by the Inspector, on the basis that a dwelling would be an intrusion into the agricultural/horticultural hinterland.        Within DDP No. 6 the applicant's land was zoned as "Developed Glasshouse Area" and the adjoining land was zoned as a "White area".        In September 1990 the applicant submitted to the Island Development Committee (IDC) a retrospective application for permission to convert his packing shed within the area zoned "Developed Glasshouse Area" into a dwelling.   The application for change of use was refused in July 1991.   The IDC requested the applicant to cease using his shed as a dwelling within 3 months.   Due to his financial position the applicant stayed in his shed.   In October 1991, when his debts had risen to over £100,000, the applicant sold part of the land and glasshouses, but kept the shed and a plot of land alongside it.        In March 1992 the applicant pleaded guilty in the local Magistrates Court to a charge of illegal change of use of the shed. He was fined £100.   No further order was made against him.        In June 1993 the Royal Court of the Island of Guernsey ordered the applicant to vacate the shed and restore it back to a packing shed within 3 months.        On 10 August 1993 the applicant wrote to the IDC, once again asking for a change of use of the packing shed.   His representative's letter of that date underlined that the applicant would continue to work in the glasshouses which he still rented, that the exterior of the property would not be changed at all, that the applicant would comply with building regulations, that the future use of the building would not be prejudiced by permission to change the use, and that the use of the building as a dwelling would not derogate from any visual amenity. On 25 October 1994 the IDC, having previously conducted a site visit, refused to agree to the change of use.   Its letter of 26 October 1994 gave as a reason:        "The site is located within a Developed Glasshouse Area and the      Committee's written statement of policy makes no provision for      the form of development proposed."        The applicant appealed to the Royal Court.   At the hearing on 6 June 1995, the applicant was represented by Advocate Perrot.   The Royal Court sat as a full court and was presided over by the Bailiff. Advocate Perrot accepted that the written statement provided for no development other than Developed Glasshouse of the area, but submitted that there were nevertheless reasons in the case to permit the change of use: the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land, such that it was unreasonable for the IDC to take an unduly narrow view of what it allowed under the DDP.   The Bailiff then summed up the applicant's complaints to the Jurats, instructing them that it was for the IDC to satisfy the Jurats that the IDC's decision was reasonable, rather than the reverse.        The appeal was dismissed on the same day.   The Jurats were unanimous in their finding that the decision of the IDC was a reasonable one. The decision recites the grounds of appeal, but gives no reasons.   B.    The relevant domestic law and practice        Land use in the island of Guernsey is controlled by the provisions of the Island Development (Guernsey) Law 1966, as amended ("the 1966 Law").        Section 6 (1) of the 1966 Law provides for the preparation of:        "Detailed Development Plans, indicating the manner in which the      Island Development Committee (IDC) proposes that land should be      used (whether by development or otherwise) and the stages by      which such development should be carried out."   Section 6 (3) of the 1966 Law states that such plans may:        "define areas in respect of which the Committee recommends that      permission for development in pursuance of the provisions of      Part III of this Law -        (i) should not be granted,        (ii) should not be granted unless by reason of special      considerations relating to the site it would be unreasonable for      such permission not to be granted,        (iii) should, subject to the provisions of Part III of this Law,      be granted ...".        A Detailed Development Plan (DDP) has legal effect when approved by the States of Deliberations (the Guernsey legislature). Prior to approval of a DDP a Public Planning Inquiry may be held.        Interested parties are permitted to make representations to the Inspector at a Public Planning Inquiry either in person or by an advocate of the Royal Court, or other prescribed person.   The procedure at the Planning Inquiry is at the discretion of the Inspector.   He has power to summon and examine all persons as he thinks fit; require any such person to answer any question or furnish any information or produce any document; take statements from all persons he may think fit and enter and inspect any premises he deems necessary for the purposes of the inquiry.        After holding a Planning Inquiry the Inspector prepares a written report containing his recommendations on the DDP or proposals for alteration and submits the report to the IDC.        A DDP has a duration of five years under section 7 of the 1966 Law, and within that period Section 8 of the 1966 Law requires the IDC to review the Plan.         In connection with "Developed Glasshouse Areas" the DDP provides:        "Development within these zones for other purposes will not be      permitted but further modernisation and glasshouse consolidation      will not be resisted.   Obsolete glasshouses in these areas may      be demolished so that the land may revert to open horticultural      or agricultural use until required again for horticultural      development."        "White areas" are defined as being reserved for agricultural use and/or visual amenity. In such areas development will in general be prohibited, and whilst in specific situations developments may be approved there will be a presumption in favour of retaining the present use of land and buildings.        Development is defined in section 40 of the 1966 Law as "the carrying out of any building engineering, mining or other operation in, on, over or under land and includes the making of any material change in the use of any building or land".        By section 14 (1) of the 1966 Law, written permission must be obtained from the IDC for the carrying out of any development of land. Under section 17 the IDC must take into account any relevant DDP. Departures from a DDP are permitted by Section 18 if:        "in the opinion of the Committee, it is a departure of a minor      nature not warranting specific reference to the States under the      provisions of section 8."        By section 26 of the 1966 Law, a person has a right of appeal from a decision of the IDC concerning a change of use, to the Royal Court.   An appeal may be made on the ground that the decision of the Committee was "ultra vires or was an unreasonable exercise of its powers".   The Composition of the Royal Court        When sitting as a full court, the Royal Court is presided over by the Bailiff or in his absence the Deputy Bailiff or a Lieutenant- Bailiff.   The Court consists of not less that seven out of the twelve Jurats.   The Bailiff        The Bailiff is appointed by the Sovereign and holds office during Her Majesty's pleasure.   He is the president of the Royal Court and President of the Court of Appeal, spending the majority of his time discharging judicial functions. By convention, he is a senior qualified lawyer.        The role of the Bailiff as the President of the Royal Court is to determine questions of law and to direct the Jurats on the relevant law and as to the matters which they should consider in determining issues of fact.   The directions of the Bailiff are delivered orally in open court, whereupon the Jurats retire to consider their decision in private.        The Bailiff is also the President of the States of Deliberation (the Island legislature), and President of the States of Election (an electoral college responsible for appointing the jurats). Within both of these roles he has no original vote, but does hold a casting vote in the event of equality of votes.        The States of Election consists of the following members:        (a)    The Bailiff;        (b)    The 12 Jurats;        (c)    12 Conseillers (persons who have served for at least            30 months in the States of Deliberations and who are            elected by universal suffrage for a term of 6 years);        (d)    The 10 Rectors;        (e)    The Law Officers of the Crown (i.e. HM Procureur and HM            Comptroller);        (f)    33 People's Deputies (elected to the States by universal            suffrage for a term of 3 years);        (g)    34 Douzaine Representatives (persons nominated to the            States by the Douzaine - or parish councils - for a term of            1 year, a council being elected by the voting inhabitants            of the parish in question).        The Bailiff is also the head of the administration of the Island. It is through the Bailiff that official communications between the Island's administration, Her Majesty's Government and the administrations of the other islands are channelled.   He chairs four States Committees, namely the States Appointments Board (dealing with senior civil service appointments - this does not include any of the personnel of the IDC), the Emergency Council (charged with determining whether a state of emergency should be declared), the Legislation Committee (which is charged with ensuring that legislation is drafted in accordance with resolutions of the States of Deliberation) and the Rules of Procedure Committee which deals with the procedure of the States of Deliberation and Election.   The Bailiff takes no part in day to day decision making by States Committees.   In particular, he takes no part in the deliberations of the IDC.   Jurats        Once appointed by the States of Election, a Jurat holds office until he reaches 70 years of age.   His period of office may be extended to the age of 75 with the approval of his colleagues.   By the second proviso to section 5 (1) of the Royal Court of Guernsey (Miscellaneous Reform Provisions) Law, 1950 a Jurat can only be dismissed by Her Majesty, although the Bailiff can call upon a Jurat to resign.          Jurats do not form part of the States of Deliberation, although a jurat may be a member of certain Committees of the States, such as the Lifeboat Committee and the Legislation Committee.   However Jurats are not eligible to serve on the States Committee for Home Affairs, the Gambling Control Committee or any States Committee which administers legislation, the provisions of which include a right of appeal to the Royal Court against a decision of the Committee. Thus Jurats may not be members of the IDC, although they used to preside over planning enquiries prior to the adoption of DDPs.   This is no longer current practice.   Appeal from the Royal Court        An individual has a right to petition the Judicial Committee of the Privy Council, sitting in London, for special leave to appeal to the Judicial Committee against the decision of the Royal Court. However such leave is only given if the Judicial Committee is satisfied that the case raises either a far reaching question of law or a matter of dominant importance.   COMPLAINTS        The applicant claims that his right to respect for his home has been violated.   He also complains about the manner of conduct of these proceedings, alleging that the judges in the Royal Court were civil servants and that the Royal Court failed to give any reasoning for its judgment of 6 June 1995.        The applicant alleges violations of Article 6 para. 1 and Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 29 June 1995 and registered on 9 September 1995.        On 27 November 1996 the Commission (First Chamber) decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 23 April 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 18 June 1997.        On 15 January 1998, the First Chamber decided to remit the case to the Plenary Commission.   THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) about the proceedings and the lack of independence of the Royal Court.        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 ... by an      independent and impartial tribunal ..."        The Government submit that the applicant at no point had a right to make use of his land for residential purposes.   The shed which he made his home was situated in a zone classified as a "Developed Glasshouse" area and thus, except in special circumstances, residential use was not permitted. In these circumstances the Government argue that the proceedings, which ended with the Royal Court's decision of 6 June 1995, did not determine the applicant's civil rights or obligations within the meaning of Article 6 (Art. 6) of the Convention.        The Government argue in the alternative that the Royal Court did comply with the requirement of an "independent and impartial tribunal" in accordance with Article 6 para. 1 (Art. 6-1) of the Convention.   In particular they note that in his role as the president of the Royal Court, the Bailiff acts judicially and not in any sense as part of the executive.   Further, the Jurats are not members of the States of Deliberation and may not be members of the IDC.   The Government also state that the Jurats were charged with decisions of fact and whether the IDC's decision was reasonable or not and, as with a lay jury on a criminal case in the United Kingdom, no reasons were given for a finding of fact.        The Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and fact under the Convention, including questions of the applicability of Article 6 (Art. 6) to the proceedings, the determination of which should depend on an examination of the merits.        The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.   2.     The applicant complains under Article 8 (Art. 8) of the Convention, stating that the fact that he was unable to live on his property amounted to a violation of his right to respect for his home.        Article 8 (Art. 8) of the Convention provides:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Government submit that the shed where the applicant was living did not constitute a home for the purposes of Article 8 (Art. 8) of the Convention.   They note that the applicant commenced residence in the shed at a time when such use was unlawful, and it remained unlawful throughout.   In the alternative the Government argue that any interference with the applicant's residence in the shed was in accordance with the 1966 Law, and pursued a legitimate aim, namely planning regulations that sought to control development on the island. As to the necessity for any interference, the Government point to the margin of appreciation permitted to States, and to the procedural safeguards which were present in the case.   They also point out that there was nothing extreme about the case: the applicant's land was zoned as a Developed Glasshouse area, and it was not unreasonable for the IDC to take into account the contents of DDP 6 or to decide not to derogate from it.        The applicant repeats that he has not built anything on his land: he merely wishes to live in his shed, whose exterior appearance remains wholly unchanged.   He also claims that, although he is not allowed to live in the shed, he has to pay rates on an "unregistered dwelling".        The Commission notes that the applicant's occupation of the shed was clearly unlawful: planning permission was refused on two occasions, and the applicant was convicted in March 1992 of illegally changing the use of the shed.   However, illegality of occupation will not necessarily prevent that occupation from being a person's "home" within the meaning of Article 8 (Art. 8) of the Convention, and in the present case the Commission accepts that the applicant was using his packing shed as his home (see Eur. Court HR, Buckley v. United Kingdom, judgment of 25 September 1996, Reports-1996-IV, p. 1288, para. 55).        The refusal of planning permission and the requirement to leave within three months thus interfered with the applicant's right to respect for his home.        It is therefore necessary to consider whether the interference was "in accordance with the law", "pursued a legitimate aim" and was "necessary in a democratic society", within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        It was undoubtedly within the powers of the States of Guernsey through their Island Development Committee, applying the 1966 Law, to refuse permission for a change of use in respect of the applicant's shed, and all the relevant provisions were available.   The interference was therefore "in accordance with the law."   Further, the restrictions on the change of use of the applicant's shed can be said to have been in pursuance of the legitimate aim of preserving the environment and local character of the landscape by maintaining existing land uses.        With regard to whether the refusal of permission to allow the applicant to live in his shed was "necessary in a democratic society", the Commission recalls that, in the sphere of planning permission, the State enjoys a wide margin of appreciation (see the above-mentioned Buckley judgment, p. 1292, para. 75).   Further, the European Court of Human Rights in the case of Buckley found that the procedural safeguards available to an applicant were relevant in determining whether a state has remained within its margin of appreciation (above- mentioned Buckley judgment, p. 1292, para. 76).        In the present case, the applicant must have been aware that his occupation of his shed was unlawful when he applied for planning permission: permission had already been refused once, and he had pleaded guilty to unlawful change of use of the shed.   The area was zoned as a Developed Glasshouse area, and it was quite impossible for the applicant to claim that his occupation of the shed fell within that category.   His application could only be granted if the IDC, and subsequently the Royal Court, accepted that the proposed departure from the DDP was no more than a minor development not warranting specific reference to the States.   In the Royal Court, the burden was on the IDC to satisfy the Court that its decision not to grant permission was reasonable, and after the oral proceedings, and the directions from the Bailiff, the Jurats found that the decision was not unreasonable.        It is true that there was no express consideration of Section 18 of the 1966 Law before the Royal Court, as it is also true that there was no express weighing up by the Royal Court of the applicant's interests - in staying in his shed - as against the interests of the community in ensuring compliance with the DDP.   However, where there is a clear prohibition on residential development, the Commission considers that a failure expressly to balance various interests cannot of itself lead to the conclusion that an interference with the right to respect for home is not "necessary" in a democratic society.   This is particularly the case where, as here, the applicant was able to, and did, participate in the inquiry which led to the planning policies at issue: the applicant was able to air his views both at that early stage and later, in the planning proceedings proper.        Given the clarity of the prohibition on residential development in the Developed Glasshouse area, the importance of appropriate planning policies to development and the applicant's knowledge of the position, the Commission finds that the interference with the applicant's right to respect for his home was not disproportionate to the planning aims being pursued by the Guernsey authorities.        It follows that the authorities did not exceed their margin of appreciation, and 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,   by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint concerning the procedures before the      Guernsey courts;        DECLARES INADMISSIBLE the remainder of the application.                 M. de SALVIA                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission