Panvert v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 26889/95

by John F. PANVERT

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 March 1995 by

John F. PANVERT against the United Kingdom and registered on 23 March

1995 under file No. 26889/95;

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 British citizen born in 1946. He lives in

Hildenborough in Kent. The facts of the case as submitted by the

applicant can be summarised as follows.

In mid-1988, the applicant purchased a ruined oast house (a

building used for the drying of hops), about 60% of which he claims

remained standing. He started to restore and renovate the building.

On seeking a grant for this work, he was advised by Sevenoaks District

Council that the building's state of disrepair was such that in

planning terms the building did not exist and restoration would be

considered to constitute the erection of a new building, which would

require planning permission. The applicant claims that he was advised

that planning permission would not be granted in any case. His own

advisers, John Little Associates, advised him that the building was

agricultural and that it could never lose its title so that no planning

permission was necessary for its restoration or development. Pursuant

to this advice he started to restore the oast house.

On 21 February 1989 the Council issued an enforcement notice

("the first enforcement notice") relating to work undertaken on the

construction of a structure above one of the two kilns at the oast

house. The applicant was required to "demolish the building operations

involving roof construction". On 28 June 1989, the inspector allowed

his appeal against the first enforcement notice. He found that there

had been a breach of planning control, in that the applicant had

changed the appearance of the structure without consent, but further

found that the development was not so harmful that its removal was

justified. He therefore granted consent for retention of the works

which were "nothing more than those required to protect the structure

from the elements".

On 17 March 1989 the applicant submitted an application for

planning permission for the conversion of the oast house into a

dwelling, which was refused in early June of the same year on the

grounds of conflict with Green Belt, rural settlement and landscape

policies.

The applicant continued to restore the property and on 21 May

1991 was issued with a further enforcement notice ("the second

enforcement notice") relating to alleged further breaches of planning

control in respect of a series of building operations at the oast

house. The second enforcement notice required the demolition, within

one month, of building operations which affected the appearance of the

structure.

The applicant appealed, relying on grounds (a), (b) and (h) of

Section 174 (2) of the Town and Country Planning Act 1990, that is,

that planning permission should have been granted (ground (a)), that

there was no breach of planning control (ground (b)), and that the

period for taking the required measures was too short (ground (h)).

On 25 and 26 February 1992 a public inquiry was held and the inspector

visited the site on 26 February 1992. On 27 March 1992 the inspector

dismissed the appeal stating:

In connection with the ground (b) appeal.

"6. From the photographic and other evidence before me, my own

view is that in 1987 Kettleshill Oast was so dilapidated and

derelict that, as a matter of fact and degree, it no longer

constituted a building, in that the first floor superstructure

and flooring, roof, and western wall of the stowage were missing,

and the roundels were truncated with missing brickwork and no

roofs. The works carried out by the time of the 1989 appeal were

in my view of such limited nature that the oast could still not

be regarded as a building. In this situation I am firmly of the

opinion that, as a matter of fact and degree, the works carried

out since 1989 are properly regarded as new building works ....

Consequently, these works require planning permission and, as

such permission has not been obtained, a breach of planning

control has occurred."

The inspector stated that he considered the building to have no

present use and that the applicant had provided no evidence regarding

future use. He therefore considered that there were no special

circumstances which justified what, in planning terms, was the

construction of a new building.

The inspector accepted that the building as it now stood was

attractive, that oasts were a typical feature of the Kent countryside

and that the oast did not harm the appearance of the landscape and

could even be said to have effected some visual improvement. However,

he concluded, in connection with the ground (a) appeal:

"16. ... On balance, however, ... I have decided that the

objections to the development in the Green Belt in particular and

the countryside in general, outweigh the benefits to the

landscape. I conclude therefore, that in the particular

circumstances of this case an exception is not justified to

policies of restraint on inappropriate development in the

countryside, having particular regard to the fact that the site

lies within an area designated as Green Belt, an Area of

Outstanding Natural Beauty and a Special Landscape Area. I have

decided that the development is thereby unacceptable.

Accordingly ... I shall refuse to grant planning permission in

respect of the deemed application.

17 ... In my view if I were to allow this appeal it is probable

that my decision would be cited as a precedent making it more

difficult for the Council to resist similar development elsewhere

... I am satisfied that if this appeal succeeded the objectives

of longstanding policies of restraint would be undermined.

19 You laid great stress at the inquiry on your view that the

use of the building is not a matter before me, and that I should

concern myself only with the effect of the building's physical

fabric on its surroundings. I take the point you are making but

consider that, in view of the highly sensitive location of the

site, the likely future use of the building is a material, though

not an overriding, consideration. Given the nature of the works

carried out, and the limited extent of your client's landholding,

in the vicinity of the site, I find it difficult to envisage the

building being used for agricultural purposes. I am also aware

that planning applications for conversion of the building to

residential use were submitted in 1987 by your client's

predecessor, and by your client himself in 1991 [in fact 1989].

I feel it is a reasonable assumption that if I were to allow the

present appeal it would be virtually impossible for the Council

to resist conversion of the building to a dwelling, and in my

view this would be the most likely future use. I emphasise that

considerations of future use of the building have had no direct

influence on my decision. However, I feel the Council is

justifiably concerned about your client's intentions, and this

is a matter which strengthens me in my view that the development

is unacceptable."

The inspector granted an extension of 6 months for the demolition

of the building works.

On 24 April 1992 the applicant applied for leave to appeal to the

High Court. His grounds of challenge were that the decision was not

within the powers conferred by the Town and Country Planning Act 1990,

and that the requirements of the Town and Country Planning

(Enforcement) (Inquiries Procedure) Rules 1981 had not been complied

with. The applicant contended inter alia that the inspector had erred

in law (i) in that he had found that the works to the oast house

improved the landscape but nevertheless concluded that the relevant

landscape policies counted against the grant of planning consent; (ii)

in that he had referred to guidance on re-use of agricultural buildings

whereas the case was concerned not with change of use development but

with "operational development"; (iii) in that the consideration of the

precedent effect of a grant of planning permission was tainted by

taking into account an irrelevant factor, namely the "unlawful

conclusion that to grant planning permission would be contrary to the

applicable policies", and (iv) in that there was no evidence that

granting permission would have an undesirable precedent effect.

Leave to appeal was granted on 9 June 1992. On 27 May 1993 the

appeal was dismissed. The judge noted that he was not concerned with

the inspector's decision on the ground (b) appeal, and found in

connection with the ground (a) appeal (that is, the refusal of planning

permission) inter alia the following:

"In my judgment, the process of the inspector's reasoning

is clear and reasonable, and reveals no error of law ...

... [the inspector] attached more weight to the policies of

restraint. That was a matter of planning judgment which

was entirely for him. It is impossible to say that in so

doing he acted unreasonably or failed to have regard to his

own conclusion on the effect on the Area of Outstanding

Natural Beauty and Special Landscape policies. He did so

in terms, and then reached a balanced judgment. ...

It cannot, in my judgment, be said that the effect of

granting permission on these policies of restraint was not

a material consideration ... I would only add that it is

clear from his decision letter that this question of

precedent was not the inspector's reason for dismissing the

appeal. It was very much a top-up point, which he did not

need to have made."

The applicant's appeal to the Court of Appeal was dismissed on

23 June 1994. The Court of Appeal noted that the question whether

planning consent was needed at all - the ground (b) appeal to the

inspector - had not been pursued before the first instance judge, and

that the Court had refused to permit it to be raised on the appeal.

It nevertheless noted:

"[Counsel for the applicant] submits that ... the inspector

misdirected himself by making the finding that the work, the

subject matter of the enforcement work, was new building work.

He contends that that was a matter of law as opposed to a matter

of fact. With respect, having seen the material photographs and

the degree of dilapidation that this building suffered from, I

am quite unable to accept that submission. I take the view that

indeed it was a matter of fact and degree for the inspector to

determine whether the work about which complaint was made

amounted to new building work, and he was certainly at liberty

on the facts as found by him to make that affirmative finding.

For my part even if the inspector had been mistaken, and I do not

for one moment acknowledge that he was, in planning terms the

result would have been no different."

As to the remainder of the appeal, the Court noted that:

"...at the heart of this appeal lies the proper planning approach

to the development which has taken place and whether that

development constituted an exception justifying permission

despite the policies inherent in the Green Belt concept.

[Those policies are:]

'The general policies controlling development in the countryside

apply with equal force in green belts but there is, in addition,

a general presumption against inappropriate development within

them.

... Inside a Green Belt, approval should not be given, except in

very special circumstances, for the construction of new buildings

or for the change of use of existing buildings for purposes other

than agriculture and forestry, outdoor sport, cemeteries,

institutions standing in extensive grounds, or other uses

appropriate to a rural area'.

I pause to note that ... in the report of the appellant's

expert to the inspector, it was made abundantly plain that

the ultimate intention here was to convert this oast house

to a private dwelling. ...

In my view, the photographs demonstrate plainly that this oast

house was indeed a building which had become so derelict that it

could only be brought back into use by complete or substantial

reconstruction. That brings us back to the point ... as to

whether this was indeed a new building operation or something

less than that. ... How did the inspector approach the facts of

this case? First, he reminded himself of the policy

considerations ... The inspector went on to deal with the

precedent, and acknowledged that if planning permission were

granted here it might create an undesirable precedent rendering

the refusal of similar applications in the future undesirable

from the point of view of the planning authority. The inspector

did not forget that there was local support for the development

and then finally he commented ... upon the ultimate use to which

this oast house might well be put. ... [T]he inspector exercised

what in my view, reflecting the words of the [first instance]

judge, was no more and no less than a 'planning judgment'. He

asked himself the right question. Was there material upon which

he could provide the answer? There plainly was. Can this Court,

can the [first instance] judge, interfere with the planning

judgment? Was there any material to indicate that the inspector

misdirected himself - that he took into account material that he

was not entitled to take into account, or failed to have regard

to material to which he should have attached importance? I can

detect no affirmative answer to any of those questions, and in

agreement with the [first instance] judge I think this inspector

was not only entitled, but was right to come to the conclusion

that he did."

By letter dated 19 July 1994, the applicant applied for leave to

present a petition of appeal on a point of law to the House of Lords

from the Order of the Court of Appeal. On 26 July 1994, that

application was dismissed. On 21 July 1994 the appellant petitioned

the House of Lords directly. His petition for leave was heard on

4 October 1994 and dismissed on 13 December 1994.

COMPLAINTS

The applicant complains of a violation of Article 1 of Protocol

No. 1, claiming that the demolition of the building is excessive and

disproportionate and does not serve any legitimate policy objective of

the Government.

The applicant further complains that he was deprived of the right

to a fair and impartial hearing to determine his civil rights, the

inspector being a salaried civil servant employed by the Secretary of

State's Department. He claims that because the determination of his

case depended predominantly on factual findings, namely:

(a) whether the repair and restoration had been reasonably

necessary for the purposes of agriculture within the unit of

agricultural land at the time the repair and restoration was

carried out;

(b) whether the building was by design an agricultural building;

and

(c) whether the policies relating to the countryside relate to

conversion of agricultural buildings and not restoration of

existing buildings where no change of use is before the

inspector,

the availability of an appeal from the decision of the inspector was

insufficient to meet the requirements of Article 6 of the Convention.

THE LAW

1 The applicant complains that the requirement that he demolish

part of the oast house which he built without planning permission

serves no legitimate purpose and is disproportionate within the meaning

of Article 1 of Protocol No. 1 (P1-1) to the Convention.

Article 1 of Protocol No. 1 (P1-1) provides:

"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 aim of the enforcement notice which

was served on the applicant was to limit the use of the property to

that which was permitted under domestic law. There must, accordingly,

be some doubt as to whether the applicant's right to the peaceful

enjoyment of his possessions has been interfered with. However,

assuming that there is such an interference, any limitation on use

requires justification in the public interest if it amounts to a

deprivation of possessions, or in the general interest if it

constitutes the control of property.

The Commission recalls that the Convention organs have found on

several occasions that Contracting States enjoy a wide discretion in

regulating planning matters (cf. Eur. Court H.R., Sporrong and Lönnroth

judgment of 23 September 1982, Series A no. 52, p. 26, para. 69, and,

in the context of United Kingdom legislation, Chater v. the United

Kingdom, No. 11723/85, Dec. 7.5.87, D.R. 52 p. 250, 256).

The Commission finds that the requirement on the applicant to

demolish the building works that he had carried out - despite the fact

that it may involve some considerable expenditure - does not amount to

a deprivation of possessions, but a control of the use of property.

Accordingly, the Commission must supervise the lawfulness,

purpose and proportionality of the restrictions (cf, for example, Eur.

Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no.

163, pp. 17 -18, paras. 56-64). The Commission must determine whether,

whilst recognising the wide margin of appreciation afforded to States

in planning matters, a fair balance was struck between the general

interest of the community and the protection of the individual's

fundamental rights (cf. Chater v. the United Kingdom, No. 11723/85,

referred to above).

The Commission accepts that planning controls are necessary and

desirable in modern society in order to preserve and improve town and

country landscapes. The applicant does not regard the issue, service

and enforcement of the enforcement notice as in any way unlawful. The

Commission finds that the lawfulness and purpose of the interference

are established.

As to proportionality, the Commission would first note that, as

a general rule, the rights secured by Article 1 of Protocol No. 1

(P1-1) cannot be invoked in order to extend property rights in domestic

law by requiring planning permission for purposes which have never been

permitted (cf. Bryan v. the United Kingdom, Dec. 14.10.93). It notes

that the inspector who held the enquiry into the enforcement notice

considered it in some detail and determined that the restoration works,

under planning law, constituted the construction of a new building with

no specific use. He concluded that planning permission was required

and had not been granted. In deciding not to deem planning permission

granted for the purposes of overturning the enforcement notice, the

inspector noted that the buildings were within the Green Belt, an Area

of Outstanding Natural Beauty and a Special Landscape Area. Although

he did not consider that the building works had spoiled the natural

landscape and indeed considered that they had effected some visual

improvement, he took into account other factors including the policy

of planning restraint in the area and the need to preserve that policy

except in very special circumstances.

The applicant chose to ignore the Council's advice given in 1989,

that the restoration of the oast would be viewed as "development" and

would therefore require planning permission. His contention that it

did not require planning permission because it was an agricultural

building was, by implication, not accepted by the inspector who granted

planning permission rather than allowing the applicant's ground (b)

appeal against the first enforcement notice. The applicant cannot

therefore contend that his subsequent development of the oast was done

under a misapprehension as to planning requirements.

The inspector permitted an extension of the period permitted for

demolition of the buildings as he considered "it reasonable, given the

extent of the works to be carried out and the desirability of salvaging

materials".

The fact that this case involved the development and restoration

of a ruined old building does not in the Commission's view mean that

it should be treated in a different way from any other building work

that is controlled by planning legislation. Nor can subjective factors

such as the fact that the oast has been restored in an attractive way

influence the Commission's approach. The Commission must determine

whether, in the case before it, the control of use struck a fair

balance between the conflicting interests. In doing so it recognises

the considerable consequences of the decision for the applicant.

The Commission notes that the High Court considered the

applicant's complaints about the inspector's decision, and found that

he "attached more weight to the policies of restraint" than to

questions of whether the applicant's case would be used as a precedent

for other development in the future. The Court of Appeal noted that

the applicant's expert had "made abundantly plain that the ultimate

intention here was to convert this oast house to a private dwelling".

In the light of the balancing exercise undertaken by the

inspector, the review of that exercise carried out by the High Court

and the Court of Appeal, and the discretion accorded to the domestic

authorities in this type of case, the Commission finds that a fair

balance has been struck between the applicant's interests and the

general interest.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2 The applicant complains that he was deprived of his right to an

independent and impartial tribunal in the determination of his appeal

against the second enforcement notice, in violation of Article 6

para. 1 (Art. 6-1) of the Convention.

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."

The Commission first notes that the proceedings in the present

case involved the determination of the applicant's "civil rights" (cf.

Eur. Court H.R., Bryan judgment of 22 November 1995, Series A no. 335,

para. 31 "Bryan judgment").

If the proceedings before the domestic authorities and courts are

to satisfy the requirements of Article 6 (Art. 6) of the Convention,

either the adjudicatory body itself must comply with those

requirements, or the proceedings before that body must be "subject to

subsequent control by a judicial body that has full jurisdiction and

does provide the guarantees of Article 6 para. 1 (Art. 6-1) "(Bryan

judgment, para. 40 with further reference).

As to the inspector in the present case, the Commission recalls

that in the Bryan judgment, the European Court of Human Rights held

that the inspector in the proceedings there lacked the requisite

appearance of independence and impartiality and so could not be

considered to fulfil the requirements of Article 6 (Art. 6) of the

Convention (para. 38). There is no reason to consider the position to

be different in the present case.

Accordingly, the Commission must decide whether the review of the

inspector's decision by the High Court and the Court of Appeal

satisfied the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention as far as the scope of its jurisdiction is concerned.

The Commission recalls that in the Bryan judgment, the European

Court of Human Rights held as follows:

"44. The Court notes that the appeal to the High Court, being on

"points of law", was not capable of embracing all aspects of the

Inspector's decision concerning the enforcement notice served on

Mr. Bryan. In particular, as is not infrequently the case in

relation to administrative-law appeals in the Council of Europe

member States, there was no rehearing as such of the original

complaints submitted to the inspector; the High Court could not

substitute its own decision on the merits for that of the

inspector; and its jurisdiction over the facts was limited ...

However, apart from the classic grounds of unlawfulness under

English law (going to such issues as fairness, procedural

propriety, independence and impartiality), the inspector's

decision could have been quashed by the High Court if it had been

made by reference to irrelevant factors or without regard to

relevant factors; or if the evidence relied on by the inspector

was not capable of supporting a finding of fact; or if the

decision was based on an inference from facts which was perverse

or irrational in the sense that no inspector properly directing

himself would have drawn such an inference ... .

45 Furthermore, in assessing the sufficiency of the review

available to Mr. Bryan on appeal to the High Court, it is

necessary to have regard to matters such as the subject-matter

of the decision appealed against, the manner in which that

decision was arrived at, and the content of the dispute,

including the desired and actual grounds of appeal.

46 In this connection the Court would once more refer to the

uncontested safeguards attending the procedure before the

Inspector: the quasi-judicial character of the decision-making

process; the duty incumbent on each inspector to exercise

independent judgment; the requirement that inspectors must not

be subject to any improper influence; the stated mission of the

Inspectorate to uphold the principles of openness, fairness and

impartiality ... . Further, any alleged shortcoming in relation

to these safeguards could have been subject to review by the

High Court.

47 In the present case there was no dispute as to the primary

facts. Nor was any challenge made at the hearing in the High

Court to the factual inferences drawn by the Inspector, following

the abandonment by the applicant of his objection to the

Inspector's reasoning under ground (b) ... . The High Court had

jurisdiction to entertain the remaining grounds of the

applicant's appeal, and his submissions were adequately dealt

with point by point ... . These submissions, as the Commission

noted, went essentially to questions involving "a panoply of

policy matters such as development plans, and the fact that the

property was situated in a green belt and a Conservation Area".

Furthermore, even if the applicant had sought to pursue his

appeal under ground (b), the Court notes that, while the High

Court could not have substituted its own findings of fact for

those of the Inspector, it would have had the power to satisfy

itself that the Inspector's findings of fact or the inferences

based on them were neither perverse nor irrational ... Such an

approach by an appeal tribunal on questions of fact can

reasonably be expected in specialised areas of the law such as

the one at issue, particularly where the facts have already been

established in the course of a quasi-judicial procedure governed

by many of the safeguards required by Article 6 para. 1

(Art. 6-1). It is also frequently a feature in the systems of

judicial control of administrative decisions found throughout the

Council of Europe member States. Indeed, in the instant case,

the subject-matter of the contested decision by the Inspector was

a typical example of the exercise of discretionary judgment in

the regulation of citizens' conduct in the sphere of town and

country planning."

In the present case, there was a dispute as to the facts before

the inspector which was not taken up before the High Court on the

applicant's appeal - namely, the question whether the applicant had

built a new building, which required planning permission, or whether

he had merely undertaken works of improvement or maintenance, for which

no planning permission was needed. The point was raised before the

Court of Appeal, however. The Court of Appeal ruled that the point

could not be pursued before it, but nevertheless considered the

question. In the context of its comments on the applicant's (late)

challenge to the ground (b) reasoning, the Court found that the

question of whether new building work had been undertaken was a "matter

of fact and degree for the inspector to determine". These comments

could be interpreted as the Court of Appeal declining jurisdiction in

respect of a particular point (cf., Eur. Court H.R., Fischer judgment

of 26 April 1995, Series A no. 312, p. 18, para. 34). However, in the

context of its discussion of the policy implications of the case, the

Court of Appeal also found that "this was indeed a building which had

become so derelict that it could only be brought back into use by

complete or substantial reconstruction", and then went on to consider

the way the inspector had approached the question.

Accordingly, the only factual aspect of the case before the Court

of Appeal was in the event considered and rejected on its merits - that

is, the Court of Appeal did not in the end decline to deal with the

point (even though the applicant had not raised it before the High

Court) but found that the inspector was right when he decided that the

applicant had undertaken work which amounted to development and

therefore needed planning permission.

As to the remainder of the matters before the High Court and the

Court of Appeal, the Commission considers, as did the European Court

of Human Rights in its Bryan judgment (para. 47), that the applicant's

submissions were adequately dealt with point by point.

In the light of the above considerations, and the general

considerations made by the European Court of Human Rights in the Bryan

judgment, in particular the subject-matter of the decision appealed

against, the manner in which that decision was arrived at, and the

content of the dispute, including the actual and desired grounds of

appeal, the Commission finds that the scope of review of the High Court

and the Court of Appeal was sufficient to comply with 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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)