AS TO THE ADMISSIBILITY OF
Application no. 27023/03
by John SAMMUT and VISA INVESTMENTS LIMITED
On 16 October 2007
the case was declared inadmissible as a whole
pursuant to Article 35 § 4 of the Convention
The European Court of Human Rights (Fourth Section), sitting on 28 June 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 19 August 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant, Mr John Sammut, is a Maltese national, who was born in 1948 and lives in Sliema (Malta). He is the director of the second applicant, Visa Investments Limited, a limited liability company located in Sliema. The applicants are represented before the Court by Mr I. Refalo and Mrs T. Cachia, both lawyers practising in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The issuing of the building permits and the change in the building conditions
The second applicant is the owner of real estate in Sliema. In his capacity of company director the first applicant was given authority to obtain from the administration the authorisations needed for carrying on building work.
On 6 December 1990 the Planning Area Permits Board (the “PAPB”) issued a permit in which it authorised the first applicant “to demolish the existing buildings and to re-erect ground floor and mezzanine shopping arcades with overlying flats and garages at basement level ... Balconies should not be in gold, silver or bronze aluminium. Height of building should not exceed eight floors plus underlying basement”.
This permit was valid for two years, and the authorised work was carried out within that period.
The first applicant subsequently applied for a further permit connected to the same development. On 28 July 1992 a new permit was issued and the first applicant was authorised “to demolish the existing building and to re-erect three basement/garages for private cars, plus ground floor shopping arcades ... with overlying flats (6 floors) including bathrooms ...” The permit also covered the erection of a ground floor plus three overlying floors for commercial use.
The applicants developed the site according to the permits and according to the plans approved by the PAPB.
On 14 August 1992 the PAPB issued of its own motion another permit in the name of the first applicant. This permit authorised the development of the site in question in a different manner. In particular, the overlying flats mentioned in the permit of 28 July 1992 were limited to five (instead of six) floors. It was stated that the plans issued with the permit of 28 July 1992 were replaced. The authorisation to construct apartments on the sixth floor and to build a mezzanine floor was therefore revoked.
According to the Government, the issuing of the permit of 14 August 1992 was meant to correct an oversight which had occurred during the drafting of the permit of 28 July 1992. On that occasion the PAPB had deleted one of the floors, marked as a mezzanine floor, from the plans submitted by the applicants. However, by reason of a clerical error, this deletion was not reflected in the permit of 28 July 1992. The applicants submitted that it was not possible for them to know whether the authorisation to build a mezzanine floor was due, as the Government stated, to an “oversight”.
The change in the building specifications was not notified to the applicants, who were not informed that the PAPB was reconsidering the permits already issued to them.
However, the permit of 14 August 1992 was sent to the applicants' architect, who on 18 August 1992 requested the Chairman of the PAPB to reconsider the permit in issue. On 29 October 1993 the Malta Environment and Planning Authority (the “MEPA”) replied that the Development Control Commission (the “DCC”) had decided that the permit of 14 August 1992 should stand as issued.
The applicants submitted that it was unclear to them and to their architect that the request of 18 August 1992 was being considered by the DCC, which never invited them to present oral or written submissions.
2. The enforcement notices
On 28 January 1994 the MEPA issued an enforcement notice (no. 62/94). It observed that the seventh floor and a number of bathrooms were not covered by a development permit. The applicants were ordered to demolish those parts of the development already completed which were not authorised by the permit of 14 August 1992.
On 8 February 1994 the first applicant appealed against this notice before the Planning Appeals Board, which rejected his claim in a decision of 30 June 1995. The Board held that the only valid building permit was that issued on 14 August 1992 and that the plans submitted by the applicants and the permits previously granted on the basis of these plans were not in conformity with the law.
The first applicant referred his case to the Court of Appeal. He argued that the original permit had never been validly revoked. However, on 3 June 1996 this appeal was adjourned sine die at the first applicant's request by reason of the fact that a constitutional claim, having a bearing on the proceedings before the Court of Appeal, had been filed before the Civil Court (First Hall). According to the information provided by the Government in October 2004, at that date the proceedings before the Court of Appeal had not been reactivated.
In the meantime, on 3 April 1996, the MEPA had issued against the applicants another enforcement notice (no. 556/96) in relation to an illegal development of the façade of the building. The applicants did not appeal against this notice to the Planning Appeals Board.
The applicants asserted that on the basis of the permits of 6 December 1990 and of 28 July 1992 they had undertaken several obligations vis-à-vis third parties, including leases and sales, and had provided funding for the planned construction work. Due to the partial revocation of these permits, the applicants were unable to honour their obligations, thus suffering a significant financial loss.
3. The first applicant's constitutional complaint
On 3 June 1996 the first applicant introduced a constitutional complaint before the Civil Court (First Hall). He alleged that the revocation of the permit of 28 July 1992 by means of the issuing of the new permit of 14 August 1992 had violated his right to peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1, and his right to a fair trial (Article 6 of the Convention). He also requested that the permit of 14 August 1992 be declared null and void.
In a judgment of 12 December 1996 the Civil Court rejected the complaint on procedural grounds. It observed that the first applicant had introduced his claim against the MEPA; however, this body was not a successor of the PAPB which had issued the permit of 14 August 1992.
The first applicant appealed to the Constitutional Court.
In a judgment of 30 April 1998 the Constitutional Court observed that the aim of constitutional proceedings was to afford the highest judicial protection against a violation of fundamental rights, with the least formality and the maximum efficiency. Citizens were not obliged to indicate with certainty those responsible for the violation. Therefore, nothing prevented the Civil Court from precisely identifying those who were responsible for the violation alleged and from authorising the first applicant to bring an action against them. The Constitutional Court therefore sent the file back to the Civil Court, ordering that the case be continued according to law.
In a judgment of 4 October 2000 the Civil Court refused to exercise its constitutional jurisdiction on the ground that the first applicant had used and was using ordinary remedies in order to protect his fundamental rights.
The Civil Court observed that the first applicant had requested the MEPA to reconsider his case. There was still a possibility that this request would be accepted and an appeal was available to the first applicant in case of refusal. Moreover, the first applicant had appealed to the Planning Board and the Court of Appeal.
On 12 October 2000 the first applicant appealed to the Constitutional Court.
In a judgment of 27 February 2003 the Constitutional Court rejected the first applicant's appeal and confirmed the Civil Court's judgment. It observed that in the interests of the administration of justice, the constitutional courts should not be burdened with cases which might be dealt with by other courts or for which there were other remedies available under the domestic legislation. The first applicant's claim was that by reason of the issuing of the permit of 14 August 1992 he was obliged to change what he had already developed or had planned to develop according to the previous permits. Therefore, a request for reconsideration of the case and the possibility of being granted a new permit were effective remedies available to the first applicant at the time of the introduction of his constitutional claim before the Civil Court.
4. The granting of a new building permit
Meanwhile, on 1 April 1996, the first applicant had submitted a “full development application” to the MEPA, requesting the retention of the mezzanine floor and to be authorised to change from bathrooms to penthouses. This request was refused on 14 August 1998. In a letter of 21 August 1998 the first applicant asked for a reconsideration of his request. His claim was upheld and on 21 July 2001 a new building permit was issued.
B. Relevant domestic law and practice
1. The building permits regulations
Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Article 16(1) of that Code provided:
“The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.”
The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (the “PAPB”). However, this body was abolished by the 1992 Development Planning Act (which entered into force on 1 January 1993), and a new autonomous public authority with the power to issue building permits, the Malta Environment and Planning Authority (the “MEPA”), was set up. According to the Constitutional Court (see judgment of 30 April 1998 in the case of John Sammut v. Planning Authority) the MEPA “enjoyed original powers even in relation to a development which occurred before the coming into force of Act I of 1992, and not continuing powers as a successor of the PAPB”.
2. The remedies available against a building permit
Article 37 §§ (1) and (3) of the Development Planning Act provide:
“(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-article, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration.
(3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority's or the Commission's sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.”
1. The applicants complained under Article 1 of Protocol No. 1 about the issuing of the permit of 14 August 1992.
2. The applicants complained under Article 6 of the Convention that the proceedings concerning the issuing of the permit of 14 August 1992 and the adoption of the DCC's decision of 29 October 1993 had been unfair.
1. The applicants submitted that the permit of 14 August 1992 violated their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1. This provision reads 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.”
A. The Government's objection that the applicants were not victims
The Government argued that the applicants could not claim to be “victims”, within the meaning of Article 34 of the Convention, of the facts complained of. They observed that in July 2001 the first applicant's request for a full development permit was granted. According to the Government, this was tantamount to the full re-instatement of the original building permits, as the authorisation obtained in 2001 covered also the construction works which had not been approved by the permit of 14 August 1992.
The applicants challenged this argument. They observed that their complaint was that they had been deprived of the enjoyment of their property for a considerable period. The fact that the permit had been eventually granted removed part of their grievances, but did not in any way compensate for the loss and damage suffered during the years in which they had enormous difficulties in dealing with their property.
The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, inter alia, Prodan v. Moldova, no. 49806/99, § 47, ECHR 2004-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). In the present case the Court notes that in the decision of 21 July 2001 the national authorities neither acknowledged an alleged breach of the applicants' Convention rights nor afforded any redress for the period of almost nine years during which the applicants' property rights were allegedly affected by the changes in the building specifications imposed by the permit of 14 August 1992 (see, mutatis mutandis, Christian Democratic People's Party v. Moldova (dec.), no. 28793/02, 22 March 2005).
In these circumstances, the Court considers that the applicants may still claim to be “victims” of a violation of Article 1 of Protocol No. 1. It follows that the Government's objection should be dismissed.
B. The Government's objection of non-exhaustion of domestic remedies
1. The arguments of the parties
(α) The Government
The Government submitted that domestic remedies had not been exhausted. They observed that the applicants repeatedly undertook a course of action to obtain a remedy and then failed to pursue it according to the procedure prescribed by law.
In particular, in relation to the issuing of the permit of 14 August 1992, the applicants could have had recourse to judicial review against the PAPB and against the Minister responsible for public works. The effectiveness of this remedy had been affirmed by the domestic courts in a number of decisions (the Government cited, inter alia, Reno Alamango v. Mary Rose Ciantar, Court of Appeal's judgment of 29 May 1991; Teddy Rapa v. Chairman Planning Authority, Constitutional Court's judgment of 31 May 2000; Emanuel and Rita Bezzina v. Chairman Planning Authority, Constitutional Court's judgment of 18 June 2003) and especially in the case of Mary Grech v. Minister of Public Works (Court of Appeal's judgment of 29 January 1993), which, like the present case, concerned a building permit originally granted and subsequently revoked. In the Mary Grech case, judicial review had been successfully requested and the PAPB's decision had been declared null and void.
The Government pointed out that the applicants, relying on Article 37 of the Development Planning Act (see above, under “Relevant domestic law and practice”), could also have asked the DCC to reconsider its decision of 29 October 1993. According to the Government, a request for reconsideration was a fully effective remedy, as was shown by a number of decisions of the DCC, by which a permit previously refused was eventually granted (they cited, inter alia, the decisions of 1 December 1995 and 12 May 1995 in the cases of Rita Farrugia and Louise Sultana).
Furthermore, the applicants could have challenged the decision of 29 October 1993 before the Planning Appeals Board, which had the power to confirm, revoke or alter the impugned decision (see, inter alia, Ronald Agius v. DCC and Reno Attard v. DCC, Planning Appeals Board's decisions of 29 October 1994 and 23 May 1995). Before this body they would have been given a full hearing and the possibility of making submissions and producing evidence. The decision of the Planning Appeals Board could have been appealed on points of law before the Court of Appeal. Any complaint about the lack of a fair hearing could have been raised at this stage and the Court of Appeal would have annulled the proceedings had it held such complaint to be well-founded. The Government observed that the Court of Appeal had indeed annulled, on several occasions, decisions of the Planning Appeals Board, thus showing the effectiveness of the remedy (they cited, inter alia, the Court of Appeal's judgment of 26 April 1996 in the case of Fredrick Mifsud Bonnici v. Joseph Kenely).
The Government pointed out that the applicants had not mentioned enforcement notice no. 62/94 of 28 January 1994 in their original application to the Court or in the proceedings before the Constitutional Court. Before the highest jurisdiction in Malta they had made no reference to enforcement notice no. 556/96 of 3 April 1996. Even if this latter document was mentioned in the application to the Court, no claim under the Convention and/or the Constitution of Malta was made with reference to the two enforcement notices. Moreover, the proceedings instituted before the Court of Appeal to challenge enforcement notice no. 62/94 had been adjourned sine die and had not been re-activated. The Government submitted that the applicants had failed to exhaust perfectly effective domestic remedies and were therefore estopped from raising any claim related to the enforcement notices.
(β) The applicants
The applicants disputed the Government's arguments and considered that they did not have at their disposal any effective remedy which they had failed to exhaust.
Challenging the permit of 14 August 1992 by way of judicial review could only have led to a declaration of nullity and not to an order to re-instate a permit which had been wrongly revoked. In the Mary Grech case, the domestic court had confined itself to a declaration that the revocation of the permit was illegal and remitted to the planning authorities the question whether the permit should be issued or not. It also refused to grant any compensation for the damage alleged by Ms Grech. It was only a number of years after this decision that the planning authorities had seen fit to reinstate Ms Grech in the enjoyment of the original permit. The applicants therefore alleged that judicial review would have left their grievances unresolved. Moreover, after the entry into force, on 1 January 1993, of the 1992 Development Planning Act, there was no further possibility of judicial review.
The applicants also asserted that they did not have the possibility of asking for reconsideration of the MEPA's decision of 29 October 1993 or of lodging an appeal against it. They observed that this decision was never notified to them. The MEPA confined itself to sending a letter to the applicants' architect, informing him that the permit of 14 August 1992 should stand as issued. This letter did not take any position on the question of the validity of the previous permits and did not mention any right of appeal or of asking for reconsideration. According to the applicants, this showed that the MEPA itself did not consider the letter in issue as a decision which could have been challenged.
The fact that, as pointed out by the Government, in other cases an appeal or a request for reconsideration had been successful did not mean that the applicants had a real opportunity of appealing against the decision to revoke the original building permit. This point had been decided by the PAPB and not by the MEPA.
The applicants observed that they could not pursue their appeal against enforcement notice no. 62/94. The Court of Appeal did not have jurisdiction over the matter, as the impugned act did not contain any error of law. As it was quite obvious that the Court of Appeal could not give them any remedy, they were forced to try a constitutional complaint based on the violation of their fundamental rights, first before the Civil Court (First Hall) and then before the Constitutional Court. The latter's judgment was the final decision by which all available domestic remedies were exhausted.
The applicants considered that they were in no manner estopped from making reference to enforcement notice no. 62/94. In the course of the proceedings concerning the challenging of this act, they had raised the issue of the validity of the first building permit, but the Planning Appeals Board had rejected their arguments.
2. The Court's assessment
The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33). Thus the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the obligation to exhaust domestic remedies only requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Vernillo v. France, judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France, judgment of 19 February 1998, Reports 1998-I, pp. 87-88, § 38). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1212, § 71, and Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 37).
The Court would emphasise that the application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that this rule is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Akdivar and Others, cited above, p. 1211, § 69).
The Court observes that the applicants' complaint essentially relates to the situation created by the issuing of the permit of 14 August 1992, which modified the building specifications fixed in the original permits, thus frustrating, for a long period of time, the applicants' expectations of developing their site in conformity with the plans previously accepted.
Before introducing their application in Strasbourg, the applicants requested the Chairman of the PAPB to reconsider the permit of 14 August 1992. The first applicant moreover appealed against notice no. 62/94 for the enforcement of this permit to the Planning Appeals Board and the Court of Appeal. He also raised a plea of unconstitutionality, based on Article 6 of the Convention and on Article 1 of Protocol No. 1. This plea was examined by the Civil Court and by the Constitutional Court.
As to the possibility of having recourse to judicial review against the PAPB's decision of 14 August 1992, this remedy could have led to the revocation of the permit in issue. However, the Government failed to show that it could have resulted in the granting of compensation for the prejudice suffered because of the changes to the building specifications, thus providing appropriate redress and depriving the applicants of their status as victims under the Convention (see, mutatis mutandis, Scordino and Others v. Italy (No. 1), no. 36813/97, ECHR 2003-IV).
As far as a request for reconsideration to the DCC is concerned, the Court observes that it is apparent from the wording of the MEPA's letter of 29 October 1993 that the DCC had already expressed its view of the matter and could not see any good reason for modifying the permit of 14 August 1992. Furthermore, Article 37(1) of the Development Planning Act does no more than state that an applicant may request the Authority or the Commission to reconsider its decision, or lodge an appeal with the Appeals Board, if he or she “considers that the conditions imposed upon a development permission ... [are] unreasonable”. This provision thus fails to indicate the legal grounds justifying such remedies. It follows that the national authorities enjoy a wide and unfettered discretion in this field and that a request for reconsideration or an appeal based on Article 37(1) of the Development Planning Act did not have reasonable prospects of success within the meaning of the Court's case-law.
In these circumstances, the Court cannot conclude that the remedies invoked by the Government were sufficiently certain in practice.
It is also to be observed that had they accepted the first applicant's plea of unconstitutionality, the Civil Court and the Constitutional Court could have found a violation of Articles 6 of the Convention and 1 of Protocol No. 1, and provided, if need be, adequate redress. They could also have upheld the first applicant's request that the permit of 14 August 1992 be declared null and void. The Court considers that in raising the said plea the first applicant made a normal use of the remedies which were accessible to him and which related to the breaches alleged. While it is true that the first applicant could have raised similar arguments while pursuing some of the other remedies referred to by the Government, he was not required to do so since under the established case-law of the Convention organs it is sufficient if an applicant has exhausted one of several alternative remedies likely to produce essentially the same effect (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, and Botta v. Italy, no. 21439/93, Commission decision of 15 January 1996, Decisions and Reports (DR) 84, pp. 34, 43).
Finally, the Court notes that even if the applicants failed to mention enforcement notice no. 62/94 in their application in Strasbourg or in the proceedings before the Constitutional Court, the first applicant challenged this act before the Planning Appeals Board and before the Court of Appeal. As the enforcement notice in issue was meant to secure compliance with the conditions laid down in the building permit of 14 August 1992, its implementation had a clear link with the applicants' complaints. Therefore, the latter cannot be considered estopped from referring to it in the proceedings before the Court.
It follows that the application cannot be rejected for non-exhaustion of domestic remedies and that the Government's objection should be dismissed.
C. The merits of the applicants' complaint
1. The arguments of the parties
(α) The applicants
The applicants alleged that the permits granted in December 1990 and July 1992 had created a reasonable and legitimate expectation as to the lasting nature of the permits and as to the possibility of continuing to draw benefits from the authorised development. However, these legitimate expectations were frustrated by the decision of 14 August 1992, which revoked the original permits and prevented the applicants from honouring the obligations they had in the meanwhile undertaken vis-à-vis third parties. Thus, the authorities had created a situation in which it became impossible for the applicants to dispose of their property properly.
The applicants considered that they had been deprived of their possessions as the apartments built on the sixth floor and on the mezzanine floor had been taken away from the development project and ordered to be demolished. The same authority which had issued the original permit had unexpectedly changed the building specifications, while there was no change in the public interest which could have justified the withdrawal of the permits already granted. This was also shown by the fact that in 2001 the MEPA itself re-instated the permit revoked in 1992.
In the applicants' view, no fair balance had been struck between the demands of the general interest of the community and the requirements of the protection of individual rights. Because of the financial and commercial implications of the revocation of the permit, which nearly forced them into bankruptcy, the individual burden imposed on them had been excessive. Evidence of these difficulties vis-à-vis the commitments they had undertaken would be “submitted in due course”.
Furthermore, enforcement notice no. 62/94, which was aimed at forcing the applicants to comply with the revocation of the original permits, had not been adopted in accordance with the law. It was based on the wrong assumption that the said permits had been validly revoked.
According to the applicants, the PAPB and the MEPA were extensions of the State's executive power. It was of little importance whether were they deprived of their right by one authority or the other or by both combined together. Even if it was exercising its original jurisdiction, the MEPA had in substance confirmed what the PAPB had done, thus assuming co-responsibility for the latter body's actions.
The applicants pointed out that their complaint was not that they should be granted a building permit. On the contrary, they argued that their right of property had been infringed because the original permit had been revoked “in the most capricious of manners” and because it took the authorities almost ten years to rectify a situation which they had themselves created.
(β) The Government
The Government alleged that the PAPB's decision of 14 August 1992 modifying the original building permit did not interfere with the applicants' right to peaceful enjoyment of possessions. They observed that at the time of the issuing of this decision the applicants had already developed their site in the way they wished, i.e. in accordance with the original permits. In any case, even assuming that there had been an interference, the latter should be regarded as a measure aimed at controlling the use of property. In fact, the applicants had not been deprived of their possessions, either wholly or in part, and only the terms of the permit to develop the real estate had been changed.
The Government argued that the measure complained of was in accordance with the general interest as it was aimed at ensuring a rational and orderly development of property in Malta with a view to facilitating town planning and protecting the physical environment. No excessive individual burden had been imposed on the applicants, as only one floor was removed from a development which consisted of six floors. Finally, the applicants had failed to produce any evidence substantiating their allegation that they had entered into obligations with third parties which they were subsequently not able to honour.
2. The Court's assessment
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. According to the applicants, the proceedings concerning the issuing of the permit of 14 August 1992 and the adoption of the DCC's decision of 29 October 1993 were unfair. They invoked Article 6 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The arguments of the parties
1. The applicants
The applicants considered that the issuing of the original building permits created in their favour civil rights protected by law (namely, the right to develop their property in accordance with the permits). Revocation of these permits was a clear interference with these rights.
The applicants alleged that the PAPB had issued the permit of 14 August 1992 without a request from them and without informing them that the Board was deliberating on issues related to their property. Moreover, they had been denied the possibility of participating in the proceedings and of presenting submissions, and the decision of the PAPB had not been notified to them, but to their architect.
As far as the decision of 29 October 1993 is concerned, the applicants pointed out that it was taken without their being given the opportunity of participating in the proceedings and in the deliberation process. The MEPA had merely informed their architect that the permit of 14 August 1992 should stand as issued.
In the light of the above, the applicants considered that not only did they not have a fair hearing, but they had been denied all possibility of having a hearing.
2. The Government
The Government alleged that Article 6 § 1 of the Convention did not apply to the proceedings complained of, which did not concern the determination of the applicants' civil rights and obligations.
The Government pointed out that the issuing of the permit of 14 August 1992 was a matter falling within the absolute discretion of the PAPB, acting as a delegate of the Minister responsible for public works. No provision of the Development Planning Act vested the applicants with a right to obtain a building permit. In any case, at the time of the issuing of the permit, there was no legal dispute over such a right.
Moreover, in its decision of 29 October 1993 the DCC did not determine any legal dispute between it and the applicants concerning a civil right, but simply exercised its original powers under the Development Planning Act. Only after the adoption of this decision could it be said that a dispute arose between the applicants and the planning authorities.
In any case, the Government submitted that in all the domestic proceedings the applicants had been given a fair hearing. No evidence to the contrary had been submitted to the Court.
Finally, the Government observed that when it informed the applicants that the permit of 14 August 1992 should stand as issued, the MEPA was exercising its original powers and was not acting as the successor of the PAPB. It was not deciding an “appeal” allegedly filed by the applicants' architect and had no need to inform the latter that it was deliberating.
B. The Court's assessment
The Court does not consider it necessary to determine whether Article 6 of the Convention was applicable to the proceedings concerning the change in the building specifications and the issuing of the permit of 14 August 1992. Even assuming that the proceedings in issue fell within the ambit of Article 6, this complaint would in any case be inadmissible, for the following reasons.
The applicants' complaint relates to the fact that they were not informed about the issuing, by the PAPB, of the permit of 14 August 1992 and that they subsequently did not have the possibility of presenting their arguments at an oral hearing before the DCC, the body competent to consider whether the PAPB's decision should be confirmed.
The Court reiterates that under Article 6 § 1 of the Convention it is necessary that decisions of administrative authorities which do not themselves satisfy the requirements of that Article should be subject to subsequent control by a judicial body that has full jurisdiction (see Ortenberg v. Austria, judgment of 25 November 1994, Series A no. 295-B, pp. 49-50, § 31, and Crişan v. Romania, no. 42930/98, § 24, 27 May 2003). Moreover, the lack of a public hearing before a lower instance may be remedied in the course of subsequent control to be carried out by such a body (Stallinger and Kuso v. Austria, judgment of 23 April 1997, Reports 1997-II, p. 679, § 46).
In the present case, on 8 February 1994 the first applicant appealed against the notice enforcing the permit of 14 August 1992 to the Planning Appeals Board. He subsequently referred his case to the Court of Appeal. These proceedings necessarily involved a control of the lawfulness of the permit which was being enforced and of the revocation of the original permit.
It has not been suggested in the present case that the Planning Appeals Board did not have the requisite scope of review or that the Court of Appeal carried out its control of legality without giving the parties the possibility of presenting their arguments in writing or at an oral hearing.
Therefore, the Court is of the opinion that the shortcomings which might have occurred before the PAPB and the DCC were remedied in the subsequent proceedings before the Planning Board and/or before the Court of Appeal.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants' complaint concerning the change in the building specifications effected by the issuing of the permit of 14 August 1992;
Declares the remainder of the application inadmissible.
Françoise Elens-Passos Nicolas Bratza
Deputy Registrar President
SAMMUT AND VISA INVESTMENTS LIMITED v. MALTA DECISION
SAMMUT AND VISA INVESTMENTS LIMITED v. MALTA DECISION