AS TO THE ADMISSIBILITY

Application No. 12360/86
by Michael Sydney RYDER
against the United Kingdom


        The European Commission of Human Rights sitting in private on
7 October 1987, the following members being present:

                MM.  C.A. NØRGAARD, President
                     S. TRECHSEL
                     F. ERMACORA
                     M.A. TRIANTAFYLLIDES
                     E. BUSUTTIL
                     A.S. GÖZÜBÜYÜK
                     A. WEITZEL
                     J.C. SOYER
                     H.G. SCHERMERS
                     H. DANELIUS
                     G. BATLINER
                     H. VANDENBERGHE
                Mrs.  G.H. THUNE
                Sir  Basil HALL
                MM.  F. MARTINEZ
                     C.L. ROZAKIS
                Mrs.  J. LIDDY

                Mr.  J. RAYMOND, Deputy 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 22 August 1986
by Michael Sydney RYDER against the United Kingdom and registered
on 27 August 1986 under file No. 12360/86;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a British citizen born in 1934 and resident
in Hertfordshire.  The facts as presented by the applicant may be
summarised as follows.

        The applicant has owned the freehold of land and premises in
Kings Langley since 1965.  Before that date, commencing in late 1963
or early 1964, he leased the property from the former owner.  The
applicant used this land for a builders' yard and for mechanics'
workshops.  The local council was aware of this and raised no
objection.

        However in April 1982, at the council's suggestion, the
applicant applied for an "established use certificate".  Under the
planning legislation, anyone who has occupied and used property for
the same purpose since 1963 can obtain such a certificate and continue
the same use.  The council, however, despite having assured the
applicant that obtaining such a certificate would be a mere formality,
refused the certificate.  An enforcement notice ordering the applicant
to discontinue his unauthorised business activities was issued on 27
April 1985.

        The applicant appealed to the Secretary of State for the
Environment.  An inspector was appointed by the Secretary of State and
an inquiry held on 4-5 March 1986, at which oral evidence was heard.
However the inspector found in favour of the local council in a
decision dated 18 June 1986.  He considered that the evidence failed to
show that the applicant had used the land in 1963 for the purposes of
his business and that the evidence instead indicated that he first
occupied the site in 1964.  The applicant had also argued that the site
was secluded, that he had carried out his business there for 22 years
without previous objection, and that he provided facilities for other
small businesses, which had helped employment in the area.  The
inspector held, however, that the facts of the situation did not
amount to the "very special circumstances" required to justify an
exception to the policy prohibiting industrial development in the
green belt.

        The applicant was advised by his solicitors and counsel that
the inspector's decision was not "appealable" (1).




----------

(1)     Section 246 of the Town and Country Planning Act 1971
        provides for appeals to the High Court on a point of law
        against decisions of the Secretary of State on enforcement
        notices.  The High Court may also interfere with a decision
        if the Secretary of State, or his inspector, acted on
        no evidence; or if he came to a conclusion to which, on the
        evidence, he could not reasonably come; or if he has given a
        wrong interpretation to the Statute's wording; or if he has
        ignored relevant matters or taken into account irrelevant
        matters; or if the rules of natural justice have not been
        observed; or if a decision is unintelligible or inadequate.
        Further appeals from a High Court decision lie to the Court of
        Appeal and, thereafter, with leave, to the House of Lords.

COMPLAINTS

        The applicant complains that the enforcement notice and the
inspector's decision to uphold the notice constitute an unjustified
interference with his right to the peaceful enjoyment of his property
contrary to Article 1 of Protocol No. 1.  He also complains that he
received no compensation, although compliance with the enforcement
notice will result in the destruction of a business which he has built
up over 20 years.

        The applicant contends that the decision to interfere with his
business and property rights was not made by an independent authority
as required by Article 6 para. 1 of the Convention.  He argues that
the inspector who decided the appeal is an employee of the Department
of the Environment, which in fact issued the "green belt" policy.  The
applicant also invokes Article 13 of the Convention and complains that
he has no remedy for his above complaints.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 22 August 1986 and
registered on 27 August 1986.

        After a preliminary examination of the case by the
Rapporteur, the Commission considered the admissibility of the
application on 4 December 1986, when it decided to adjourn the case
pending the outcome of Application No. 11723/85, Chater v. the United
Kingdom.  The Commission declared the latter application inadmissible
on 7 May 1987.


THE LAW

1.      The applicant complains that his local authority's enforcement
notice, requiring him to cease using his property for business
purposes, and the inspector's decision refusing his appeal against the
notice, constitute an unjustified interference with his right to the
peaceful enjoyment of his property, contrary to Article 1 of Protocol
No. 1 (P1-1).  He also complains of a lack of compensation.

        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 finds that the interference with property
rights disclosed by this application falls within the ambit of the
second paragraph of Article 1 of Protocol No. 1 (P1-1) as a control of the
use of property.  The Commission must therefore consider whether, on
the facts of this particular case, these measures were proportionate
and necessary, in accordance with the general interest.

        The Commission notes that the purpose of the measures was to
protect the rural character of a protected green belt area.  The
Commission recognises that planning controls are widely considered as
necessary and desirable in member States of the Council of Europe in
order to protect and preserve the environment.  The Commission
accordingly finds that the measures applied in furtherance of the
green belt policy were prima facie in accordance with the general
interest.

        Concerning the proportionality of the measures taken against
the applicant, which require him to cease use of his premises for his
business, the Commission recalls that the applicant had at no previous
time applied for planning permission for his business and it notes
that at all times such use had been unlawful under the relevant
legislation.

        The Commission is also satisfied that the domestic law
permitted the competent planning authorities to take into account, as
a material consideration, the personal circumstances for the owner as
a result of a possible adverse planning decision.  The Commission
finally observes that, in principle, the protection of property rights
ensured by Article 1 of Protocol No. 1 (P1-1) cannot extend to the granting
of compensation for the cessation of an unlawful use of property
(No. 11723/85, Dec. 7.5.87, to be published in D.R.).

        In the light of the above considerations, the Commission finds
that a proper balance has been struck between the applicant's personal
interests and the general interest.  The control of the applicant's
property is therefore in accordance with the requirements of Article 1
of Protocol No. 1 (P1-1).

        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 also complains that the planning decisions in
his case were not made by an independent tribunal, as required by
Article 6 para. 1 (Art. 6-1) of the Convention.  He submits that the inspector
who decided the appeal against the enforcement notice is an employee
of the Department of the Environment, which issued the green belt
policy, which in turn restricts the use of his property.

        The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
provides as follows:

        "In the determination of his civil rights and obligations
         ... everyone is entitled to a fair and public hearing
        within a reasonable time by an independent and impartial
        tribunal established by law..."

        Insofar as the applicant disputes with the planning
authorities the extent of the lawful use of his property, the
Commission considers that such disputes may be said to involve the
applicant's civil rights and obligations.  The question thus arises
whether the applicant has had a possibility to have these disputes
determined by an independent tribunal, as envisaged by Article 6 para.
1 (Art. 6-1) of the Convention.

        It is clear that the local authority, the inspector and the
Secretary of State for the Environment cannot be considered to be
independent tribunals satisfying the requirements of Article 6 para. 1
(Art. 6-1) of the Convention.  However an appeal against a decision of the
Secretary of State, or his inspector, lies to the High Court under
Section 246 of the Town and Country Planning Act 1971 and may also be
the subject of judicial review (see footnote to p. 2 above).  The
applicant was advised by counsel that the inspector's decision was not
"appealable".  If this advice is to be construed as meaning that the
applicant had no prospects of a successful appeal, the Commision notes
that the object of Article 6 (Art. 6) is necessarily limited to the provision
of procedural guarantees and that it cannot be required to ensure
decisions to the systematic personal advantage of all litigants.
However, if counsel's advice to the applicant is construed as meaning
that the scope of the remedy was inadequate, the Commission would
refer to its case-law that the scope of judicial review of
administrative decisions may be of a limited nature and nevertheless
satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.  In
the case of Kaplan v. the United Kingdom (No. 7598/76, Dec. 17.7.80,
D.R. 21 p. 5 paras. 157-162) the Commission made the following
observations: -

        "157.  Where an individual's private rights have been
        adversely affected by action taken by a public authority,
        Article 6 (1) (Art. 6-1) plainly entitles him, in the Commission's
        opinion, to obtain access to such court remedies as
        exist within the domestic system for the purpose of
        asserting the rights affected....

        158.  However there is no question of the present applicant
        having been denied access to the existing court remedies
        in which he could seek judicial review of the Secretary of
        State's decisions.  His complaint is that these remedies
        were inadequate in scope because the courts could not go
        fully into the merits of the Secretary of State's decision
        and substitute their decision for his if they disagreed
        with him.  The question arises therefore whether he had a
        right to a court with jurisdiction to determine the
        full merits of the matter.

        159.  The Commission has already noted that in the Contracting
        States discretionary powers are frequently conferred on
        public authorities to take actions affecting private rights.
        It is also a common feature of their administrative law, and
        indeed almost a corollary of the grant of discretionary
        powers, that the scope of judicial review of the relevant
        decisions is limited.

         ...

        161.  An interpretation of Article 6(1) (Art. 6-1) under which it was
        held to provide a right to a full appeal on the merits of
        every administrative decision affecting private rights would
        therefore lead to a result which was inconsistent with the
        existing, and long-standing, legal position in most of the
        Contracting States."

        In the light of the above considerations the Commision finds
that the applicant had the opportunity to challenge the planning
decision of the inspector before the High Court pursuant to Section
246 of the Town and Country Planning Act 1971.  Accordingly he had the
possibility of access to an independent tribunal for a determination
of his civil rights and obligations, within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.  It follows that this aspect of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.

3.      The applicant finally complains of the absence of an effective
remedy in respect of his complaints.  He invokes Article 13 (Art. 13) of the
Convention, which 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."

        However, Article 13 (Art. 13), as a more general guarantee, is not
applicable in cases where the more specific guarantees of Article 6 (Art. 6)
apply, Article 6 (Art. 6) being the lex specialis in relation to Article 13
(Art. 13).  The Commission, therefore, having found above that Article 6
(Art. 6) applies, finds no separate issue arises under Article 13
(Art. 13) of the Convention in the present case.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.



  Deputy Secretary to the Commission        President of the Commission




             (J. RAYMOND)                          (C.A. NØRGAARD)