FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41671/98 
by Chung Tak LAM and Others 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 5 July 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Sir Nicolas Bratza
 Mr V. Butkevych
 Mr J. Hedigan, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 26 January 1998 and registered on 12 June 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

 

THE FACTS

The first applicant is a British national, born in 1949 and living in Paignton, England.

The second applicant, also a British national, is his wife, born in 1950. The third and fourth applicants are their children, born respectively in 1974 and 1976.

The applicants were initially represented before the Court by William A. Merrick and Co., Solicitors, London, England. They are currently represented by the Environmental Law Centre, Southport, England.

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant is the owner of a Chinese restaurant situated in a designated conservation area in the centre of Paignton. The applicant and his family live on the premises.

At the material time two warehouses and a storage building were located in the immediate vicinity of the restaurant. These units were leased in August 1988 by a company manufacturing wooden artefacts. The company obtained planning permission in November 1988 to use the storage building as a craft workshop, it being understood that any industrial processes carried out were to be restricted to those falling within Class B1 of the Town and Country Planning (Use Classes) Order 1987.

The company subsequently used one of the warehouses for paint spraying with the result that toxic cellulose paint spray fumes were emitted into the first applicant’s restaurant via an illegal vent inserted into the wall of the warehouse. The applicants became ill, suffering from a variety of symptoms including headaches, chest problems and rashes. Complaints were lodged with the Torbay Borough Council (“the local authority”) by the first applicant as well as by other residents affected by the fumes. The local authority was requested by the complainants to enquire into planning-related matters as well as environmental aspects of the company’s operations.

On 24 November 1989 the local authority granted the company permission to construct a special chimney to channel the fumes away from the neighbouring premises. However, the chimney which was built resulted in the fumes being directed downwards and worsened the situation for the applicants. They were eventually forced to abandon their home and business.

Although the local authority served a prohibition notice and an abatement notice on the company between October 1990 and December 1991, no steps were taken to enforce these notices.

In early 1991 the applicants issued proceedings against the company claiming an injunction and damages. However, the applicants were unable to continue with their claim since the defendant company was not covered by insurance in respect of public liability for the emission of fumes. In December 1992 the company abandoned its activities and the applicants returned to their premises.

The applicants turned to the local authority to secure redress and on 4 October 1994 issued a writ claiming damages for personal injury and damage to property as a result of the local authority’s negligence in granting the company the planning permission which led to the chemical processes being carried out on the company’s premises and in failing to take enforcement proceedings under the Planning Acts or Environmental Protection Acts.

On 4 October 1995 the local authority issued a High Court summons to have the writ struck out as showing no cause of action.

On 24 January 1996 Mr Justice Collins ordered that the applicants’ writ be struck out. As to the applicants’ contention that the local authority’s Planning Officer was negligent in making the necessary investigations leading to the grant of planning permission to the company, Mr Justice Collins found, firstly, that no private law right of action for breach of statutory duty existed in respect of the statutory duties imposed on the local authority under the statutory regimes governing the actions of its officers and, secondly, that no parallel or additional claim for breach of a common law duty of care lay in the circumstances of the case. While assuming that it might be possible on the facts to establish foreseeability of harm and proximity of relationship between the applicants and the local authority, Mr Justice Collins ruled that it would not be just and reasonable to impose a duty of care on the local authority. In Mr Justice Collins’ view:

“... It seems to me that it would be wholly detrimental to the proper process of considering planning applications if the local authority in addition had to have regard to the private law interests of any persons who might be affected by the grant of permission, and to ask itself in each case whether it had properly had regard to the individual rights concerned. If it were potentially liable to actions in negligence in those circumstances, it seems to me that the carrying out of its important functions in the public interest would be likely to be affected. ... It seems to me that the fact that the grant of planning permission does not give permission to create a nuisance or to do damage to a particular adjoining occupier carries with it that it is not and cannot be implicit in the grant of the permission that there is any overriding of third party rights. Once one accepts that, it seems to me that it is impossible to say there is a duty of care owed to such a third person, because ex hypothesi there can be in the grant of permission no breach of that person’s rights. .... ”

Mr Justice Collins considered that the applicant’s primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance.

As to the applicants’ claim that they had suffered damage on account of the local authority’s failure to take enforcement action, Mr Justice Collins held that the decision to take such action is one which is taken in the public interest and should not be influenced by considerations as to whether there might be a claim for negligence if action was or was not taken in a particular case. Mr Justice Collins pointed to a range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance, including a private law claim against the person creating the nuisance and the laying of a complaint before a Magistrates’ Court.

The Court of Appeal granted the applicants leave to appeal.

Before the Court of Appeal the applicants’ counsel abandoned reliance on the arguments submitted in the High Court proceedings that the breach of statutory duty on the part of the local authority gave rise to a cause of action and that a breach of a common law duty of care could be demonstrated in relation to the original grant of planning permission. The applicant’s counsel maintained that a cause of action lay in respect of the manner in which the local authority failed to exercise its enforcement functions to put an end to a statutory nuisance.

On 30 July 1997 the Court of Appeal dismissed the applicants’ appeal against Mr Justice Collins’ ruling. As regards the applicants’ reliance on the failure of the local authority to take enforcement action under sections 79 and 80 of the Town and Country Planning Act 1990, Lord Justice Potter considered that:

“...these are plainly provisions for the benefit of the public at large living within the area of the local authority and, albeit, under section 80, service of an abatement notice is obligatory if the local authority is satisfied that a statutory nuisance exists, it is not mandatory for the local authority to take proceedings for an offence under section 80(4). Indeed, should it see fit to do so, section 82(1) anticipates the right of any person ‘aggrieved by the existence of a statutory nuisance’ to make complaint to a Magistrates’ Court himself. Quite apart from that, the procedures in s. 79 and s. 80 exist in parallel with, and without any derogation from, the right of such person to take private proceedings against an adjoining landowner, whether for an injunction or damages. In those circumstances it seems to us plain that there is neither reason nor necessity in relation to such a landowner aggrieved by the failure of local authority to take action in respect of a nuisance, to create a right of action in damages based on such failure.”

On 13 January 1998 the House of Lords refused the applicants leave to appeal.

In separate proceedings the applicants sought to challenge by way of judicial review a decision reached by the Central Planning Committee of the local authority at a meeting held on 10 November 1997. The background to the meeting concerned a complaint lodged by the first applicant about smells and noises coming from the warehouses being used by a pottery business which had taken over occupancy from the company manufacturing wooden artefacts. The applicants maintained that the activity being conducted did not benefit from planning permission.

At the meeting, the committee decided that the warehouses at the rear of the applicants’ premises were being used legitimately and no enforcement action had to be taken against the owner of the pottery business.

The first applicant was present at part of the meeting and made representations to the committee. According to the first applicant, he only received official notification of the committee’s decision on 16 January 1998 through a council official who had agreed to reconsider the local authority’s decision. The council official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance.

On 6 February 1998, fifteen days after being notified of the committee’s decision, the first applicant sought leave to apply for judicial review. He maintained, inter alia, that the local authority had failed to take enforcement proceedings against the owner of the pottery business who was operating without the necessary planning permission.

On 25 June 1998 Mr Justice Moses refused the applicant’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of 10 November 1997. The judge considered that the applicant had ample time to produce such evidence between the date when the local authority notified him that it would oppose the application on grounds of delay and the start of the proceedings. The judge dismissed the applicant’s application for leave to apply for judicial review.

On appeal, Lord Justice Kennedy conceded that the scope of the planning permission in relation to the warehouses was not entirely clear. However, with reference to Order 53, rule 4(1) of the Rules of the Supreme Court and by analogy with time-limits laid down in planning legislation, Lord Justice Kennedy found himself:

“... driven to the conclusion that here the application was not made promptly, as required by Order 53, rule 4 of the Rules of the Supreme Court. There seems to be no reason why the applicant should have waited to receive the letter of 16th January 1998 before seeking to challenge the decision of 10th November. I can find no good reason to extend the period laid down by the Order.”

Lord Justice Kennedy further observed that, even if ten years ago the use made of the warehouses was unauthorised, it was now too late for the local authority to institute enforcement action.

Lord Justices Aldous and Potter agreed with Lord Justice Kennedy’s reasoning and in a judgment dated 28 October 1998 the Court of Appeal dismissed the applicants’ renewed application.

COMPLAINTS

1.  The applicants maintain that the domestic courts invoked public policy considerations in order to bestow an immunity on the local authority for its wrongful acts and omissions. The result was to deny them access to court to obtain a determination on their civil rights, in breach of Article 6 § 1 of the Convention.

2.  The applicants further state that the terms of Order 53, rule 4(1) of the Rules of the Supreme Court as applied by the domestic courts are misleading and contrary to the principles of legal certainty. They invoke Article 6 of the Convention in support of their additional complaint that they were deprived of their right of access to a court on account of inconsistent and discretionary views taken by the domestic courts of the applicable time-limits for introducing judicial review proceedings.

3.  The applicants complain under Article 8 of the Convention that the failure of the local authority to prevent the environmental pollution constitutes a breach of the respondent State’s positive obligation to protect their physical and moral integrity. The applicants further complain under Article 8 of the Convention that the refusal of the domestic courts to grant them leave to apply for judicial review of the Central Planning Committee’s decision of 10 November 1997 condemns them to continue to suffer from the emission of toxic fumes, currently discharged from the pottery workshop into their premises.

4.  The applicants further complain that the toxic emissions interfere with their right to the peaceful enjoyment of their possessions, in breach of Article 1 of Protocol No. 1 to the Convention.

5.  The applicants contend that they are denied an effective remedy in order to secure redress for the above grievances, in breach of Article 13 of the Convention.

6.  Furthermore, the applicants submit that they are the victims of unlawful discrimination since the local authority favoured the occupants of the warehouses and the domestic courts favoured the untenable statements of the local authority in disregard for theirs. They also complain that they have been discriminated against on account of their ethnic origin. The applicants invoke Article 14 of the Convention.

THE LAW

1.  The applicants submit that they were denied access to a court for a full hearing on the determination of their civil action for damages against the local authority. They rely on Article 6 § 1 of the Convention, which provides as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

In the applicants’ submission, the domestic courts took the view that, as regards planning control matters, local authorities enjoy an immunity in respect of their negligent acts or omissions. The courts based this immunity on public policy grounds. The applicants assert that if their claim had not been struck out, they would have succeeded in establishing that the local authority was guilty of negligence or breach of statutory duty or unlawful administrative acts which caused them damage, damage which was sufficiently foreseeable and proximate to give rise to a duty of care. However, the decision of the domestic courts to strike out their claim on grounds of public interest immunity deprived them of this opportunity. The applicants rely on the Commission’s Article 31 report adopted on 1 July 1997 in the case of Osman v. the United Kingdom (report appended to the Court’s judgment of 28 October 1998 as reproduced in Reports of Judgments and Decisions 1998-VIII).

The applicants further maintain that the decision of the domestic courts to strike out their judicial review action in application of Order 53, rule 4 of the Rules of the Supreme Court also gives rise to a breach of Article 6 of the Convention. The applicants submit that notwithstanding the fact that the first applicant’s application for leave was submitted promptly within the meaning of Order 53, rule 4, the courts regarded the action as time-barred. Furthermore, in the applicants’ view one of the Lord Justices of Appeal hearing the appeal, Lord Justice Potter, had an interest in the matter under consideration such as to call into question his impartiality and thus the fairness of the proceedings on appeal. In particular, the applicants draw attention to the fact that Lord Justice Potter had delivered the leading judgment in the Court of Appeal upholding the decision of Mr Justice Collins to strike out their claim against the local authority.

1.  As to the decision striking out the applicants’ statement of claim

The Court recalls that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters constitutes one aspect only (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no.18, p. 18, § 36). This right to a court “extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States” (see, inter alia, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p.16, § 36). Article 6 will however apply to disputes of a “genuine and serious nature” concerning the actual existence of a right as well as to the scope or manner in which it is exercised (see the Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, § 32).

These basic principles have recently been re-affirmed by the Court in its Z. and Others v. the United Kingdom judgment of 10 May 2001 ([GC], application no. 29392/95, to be published in ECHR 2001).

The Court further recalls that whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law, but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 § 1 may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (see the Fayed v. the United Kingdom judgment of 21 September 1994, Series A, no. 294, pp. 49-50, § 65; and, most recently, the above-mentioned Z. and Others judgment; and the T.P. and K.M. v. the United Kingdom judgment of 10 May 2001 ([GC], application no. 28945/95, to be published in ECHR 2001).

The Court does not accept the applicants’ submission that the above-mentioned Osman case represented a radical departure from its earlier approach to the applicability of Article 6 § 1. For the Court, it still remains the case that an applicant must be able to demonstrate an arguable claim under domestic law that there has been a breach of a civil right actionable in law. It is still impermissible for the Court to create in favour of an individual a substantive right where none is recognised under domestic law.

In the instant case the applicants contended before the domestic courts that they had a right to recover damages from the defendant local authority on account of the harm they personally suffered as a result of the local authority’s negligence in licensing an industrial activity not covered by planning regulations and then failing to take steps to bring an end to the health risks created by that activity. They based their claims on breach of statutory duty and breach of a common law duty of care. Mr Justice Collins concluded that neither of these heads gave the applicants a cause of action. His decision to strike out their statement of claim was affirmed on appeal.

The Court is prepared to assume for the purpose of the proceedings before it that the domestic courts were asked to rule on a serious and genuine dispute about the existence in domestic law of a right, asserted by the applicants, to sue the defendant local authority on the grounds alleged and that the domestic courts had not at the material time settled definitively the issue as to whether or not a civil action lay against a local authority in respect of alleged negligence in the performance of its planning functions. In other words, the Court will proceed on the understanding that the applicants had an arguable claim that they could rely on such a right, with the consequence that they can rely on Article 6 of the Convention.

On that assumption, the Court notes that the applicants had a full opportunity to state their case before the High Court and then to contest the latter court’s finding in favour of the local authority before the Court of Appeal. The domestic courts gave close consideration to the question of whether the applicants had a sustainable action in domestic law and paid careful regard to the case-law precedents drawn both from the law of negligence and administrative law relied on by the parties.

Taxed with this issue, it is to be observed that at no stage of the proceedings did the domestic courts rely on a doctrine of immunity to shield the local authority from the consequences of a civil action against them. The domestic courts took the view that it was not just and reasonable to impose liability on the defendant local authority in respect of alleged negligence in the grant of planning permission or the discharge of its statutory responsibilities. They gave reasons for this view. Moreover, the courts had specific regard to the remedies available in domestic law to individuals aggrieved by planning decisions which affected their interests. It cannot be overlooked either that the domestic courts, as a matter of statutory construction, concluded that Parliament did not intend to confer a civil right on an individual to sue a local authority in respect of its failure to take enforcement action in respect of a nuisance which stemmed from an activity which had been licensed by it. It was their conclusion that the intention of Parliament was to place the onus on the individual to take action against the source of the alleged nuisance and to that end a range of remedies was available.

The Court considers that the domestic courts balanced carefully the policy reasons for and against the imposition of liability on the defendant local authority in the circumstances alleged. Both the High Court and the Court of Appeal analysed the applicants’ claims from the standpoint of whether it would be just and reasonable to allow them to proceed to a determination on the merits. In sum, their claims were properly and fairly examined in light of the applicable domestic legal principles governing the law of negligence as applied to the exercise by the defendant local authority of its discretionary powers. The domestic courts’ decisions were in accordance with the development of the common law through judicial decision in the area of tortious liability and its adaptation to new situations. Those decisions did not have as their result, as contended by the applicants, the conferment of an immunity on the defendant local authority.

It is the Court’ conclusion that the applicants were able to test the arguability of their claims under domestic law. Following adversarial procedure, the fairness of which has not been contested, the domestic courts ruled against them, finding that they had no substantive right to assert. Article 6 of the Convention does not guarantee them more in the circumstances.

It follows that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  As to the effect of Order 53, rule 4(I) of the Rules of the Supreme Court and to the challenge to the impartiality of Lord Justice Potter

The Court is not persuaded either that the applicants’ other grievances under Article 6 § 1 disclose a prima facie breach of that provision.

In the first place, their complaint about the interpretation given by the domestic courts to Order 53, rule 4(1) of the Rules of the Supreme Court must be seen in the context of the approach taken to the application of the provision in previous cases. The Court notes in this respect that the domestic courts have consistently held that the primary requirement laid down by rule 4(1) is that an application must be made “promptly”, followed by the secondary provision “... and in any event within three months...”. Accordingly, there can be cases, where even though the application for leave was made within the three-month period, leave might be refused because, on the facts, the application was not made promptly. In the Court’s opinion, and with reference to the instant case, the first instance court and the Court of Appeal both considered that, on the facts, the applicants’ leave application had not been made promptly and declined to exercise their discretion to apply the above-mentioned secondary provision.

In so far as the applicants impugn the strict application of the promptness requirement in that it restricted their right of access to a court, the Court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their situation on the strength of administrative decisions.

Secondly, and with reference to the applicants’ challenge to the participation of Lord Justice Potter in the Court of Appeal proceedings, the Court observes that the applicants have not adduced a shred of evidence that there was any subjective bias on his part. Their complaint falls to be considered from the standpoint of whether, viewed objectively, they had legitimate reason to fear a lack of impartiality (the relevant principles on subjective and objective bias are set out in the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 198, § 73; see also the McGonnell v. the United Kingdom judgment of 8 February 2000, (no. 28488, § 49, to be published in ECHR 2000).

The Court observes in this connection that, although based on the same factual background, the issues raised before the Court of Appeal in the two sets of proceedings were different. On 30 July 1997 Lord Justice Potter delivered the leading judgment on behalf of the Court of Appeal in which he upheld the High Court judge’s ruling that the applicants had no actionable claim in law against the local authority. Neither the High Court judge nor the Court of Appeal made any findings of fact or sought to controvert the facts as alleged by the applicants in their statement of claim. On 28 October 1998 Lord Justice Kennedy delivered the leading judgment of the Court of Appeal rejecting the applicants’ appeal on the matter of Order 53, rule 4(1), an interlocutory matter which required an entirely different decision. Lord Justice Potter confined himself to a brief statement that he agreed with Lord Justice Kennedy’s judgment. The Court would further observe that it is in fact common in the Convention countries that judges in higher courts deal with similar or related cases in turn (see the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 28, § 73). The participation of Lord Justice Potter in both sets of proceedings brought by the applicants is not reasonably capable of giving rise to legitimate doubts as to his impartiality.

It follows that these complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicants contend that the respondent State failed in its positive obligation to safeguard their right to respect for their physical and moral integrity, in breach of Article 8 of the Convention, which provides as relevant:

“1.  Everyone has the right to respect for his private and family life, his home (...).”

With reference to the principles set out by the Court in its López Ostra v. Spain (Series A no. 303-C) and Guerra and Others v. Italy (Reports 1998-1) judgments, the applicants assert that the local authority allowed an unauthorised industrial activity to be carried out and then failed to prevent the emission of environmental pollution attendant on that activity even though it had been put on notice of its effect on their and their neighbours’ health. The applicants stress that they have suffered from a variety of health problems including nausea, headaches and tiredness, which are directly linked to their exposure to toxic fumes emitted from the adjoining warehouses.

The applicants further submit that the local authority had a statutory duty to ensure that planning permission was correctly given and that planning control regulations were enforced. However, in their submission the local authority knowingly and deliberately covered up the true planning record and maintained that there was planning permission for the conduct of the hazardous industrial processes being carried out at the rear of their premises. The result was to allow the occupants of the warehouses to engage in a harmful activity in a designated conservation area and in the face of the objections of a large number of persons in the area.

The Court recalls that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 22, § 45).

The Court observes that it would have been open to the applicants to take legal proceedings against the company occupying the premises at the rear of their restaurant when, in 1988, their health and business first began to be affected by the pollution emitted as a result of the activity being carried out there. However, they waited until early 1991 before seeking an injunction and damages against the company, by which stage they had moved out of their home and restaurant. The Court notes that the applicants abandoned their claim against the company since, in their view, the company would not have been in a position, financially, to comply with any award of damages which they may have received from the courts. However, the essence of the applicants’ grievance is that the pollution was allowed to be emitted from the company’s premises to the detriment of their health and commercial interests. In the Court’s opinion, the domestic law of the respondent State afforded the applicants available and sufficient remedies to test the lawfulness of the company’s actions in terms of both civil and criminal law in the absence of the intervention of the local authority. In this connection, the applicants have not explained to the Court’s satisfaction their failure to take timely action against the company using the tort of nuisance or why they refrained from seeking an injunction to bring an end to the emissions. It is also to be noted that the environmental and public health legislation quoted by the applicants allows an individual to lay a complaint before a Magistrates’ Court. This course of action was not pursued either by the applicants. The Court would further note that the applicants did not seek an order of mandamus against the local authority to require it to perform its enforcement duties under the environmental and public health legislation.

It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

3.  The applicants assert that the failure of the local authority to ensure the effective protection of the environment forced them to abandon their home and business for three and a half years and thus effectively deprived them of the peaceful enjoyment of their possessions. The applicants invoke Article 1 of Protocol No. 1 to the Convention, which 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 applicants state that as a result of the immunity bestowed on the local authority they were unable to be compensated for the interference which they suffered.

The Court refers to its conclusions on the applicants’ failure to avail themselves of domestic remedies in respect of their complaints under Article 8 of the Convention. It further refers to its conclusions on their complaints under Article 6 § 1 of the Convention regarding the first set of proceedings which they brought against the local authority. The arguments which they advance under this head of claim do not improve their case under the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4.  The applicants maintain that they were denied an effective remedy in respect of the serious breaches of their rights under Article 8 of the Convention and Article 1 of Protocol No. 1 thereto. They invoke Article 13 of the Convention, which states:

“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.”

The applicants reiterate that their compensation claim against the local authority was struck out on the ground that the defendant enjoyed an immunity in respect of its acts and omissions in planning control and enforcement matters. They maintain that any action they could have taken against the local authority by way of judicial review would have been too late since the damage had already occurred. In any event, they would have been unable to obtain compensation in judicial review proceedings. Furthermore, given that substantial damage had already been caused by the company before they became aware of their rights, an application for an injunction would have been ineffective.

The Court, with reference to its findings under Article 8 of the Convention and Article 1 of Protocol No. 1, does not accept the applicants’ argument that they had no effective remedy in respect of the harm caused to their health and business.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5.  The applicants finally contend, inter alia, that they were refused access to relevant files and reports which were made available to the other parties and there resulted an overwhelming inequality between the parties, in breach of Article 14 of the Convention which provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In the applicants’ further submission the circumstances of their case disclose that they are victims of discrimination on account of their ethnic origin.

The Court observes that the applicants have not substantiated their allegation that the domestic courts ruled against them on account of their ethnic origin. It further notes that they never asserted at any stage of the domestic proceedings that the local authority was guilty of discriminatory conduct. In so far as they contend that they were placed at a procedural disadvantage in the domestic proceedings with respect to the local authority, the Court does not consider that this allegation is borne out by the facts.

For these reasons, the Court by a majority

Declares the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

LAM AND OTHERS v. THE UNITED KINGDOM DECISION


LAM AND OTHERS v. THE UNITED KINGDOM DECISION