text stringlengths 5 5.67k |
|---|
In my view, the subject-matter of that case was so far from the present that it is of little assistance, other possibly than as an illustration of the width of the principle. PRE |
Closer to the present context is the decision in Bugajny v Poland (Application No 22531/05) (unreported) given 6 November 2007, which was considered and applied recently by the Court of Appeal in Thomas v Bridgend County Borough Council [2012] QB 512. PRE |
In my leading judgment I commented on the guidance to be derived from that and other cases since Sporrong: 31. PRE |
Later cases (see eg Bugajny v Poland (Application No 22531/05) (unreported) given 6 November 2007, para 56 and following) have given further guidance on the practical application of article 1 to individual cases. PRE |
First, the three rules are not distinct in the sense of being unconnected; the second and third rules are to be construed in the light of the general principle enunciated in the first rule. PRE |
Secondly, although not spelt out in the wording of the article, claims under any of the three rules need to be examined under four heads: (i) whether there was an interference with the peaceful enjoyment of possessions; (ii) whether the interference was in the general interest; (iii) whether the interference was provid... |
... 49. PRE |
The cases show that the issue of proportionality can be expanded into the following question: whether the interference with the applicants' right to peaceful enjoyment of their possessions struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection ... |
(Bugajny v Poland 6 November 2007, para 67). PRE |
In Bugajny itself certain plots in a development area had been designated as internal roads, which were in due course built and opened to the public. PRE |
The developers sought to transfer ownership to the council in return for compensation, under a statute by which public roads were required to be expropriated subject to compensation. PRE |
This request was rejected on the grounds that, not having been provided for in the local land development plan, they did not belong to the category of public roads. PRE |
An application to the Strasbourg court alleging a breach of A1P1 succeeded. PRE |
The requirement to accept the public use of the roads was an interference with the peaceful enjoyment of their possessions within A1P1. PRE |
Although it met the requirements of being lawful and in the general interest, it was not proportionate. PRE |
The court recognised that in the area of land development and town planning contracting states enjoyed a wide margin of appreciation in order to implement their policies; but it was for the court to determine whether the requisite balance was maintained in a manner consonant with the applicant's right of property (para... |
To explain how it approached that task, it is necessary to quote from the judgment at some length: [The roads] currently serve both the general public and the housing estate which the applicants developed and are open both to public and private transport of all kinds Given that the entire area of the housing estate cov... |
It has not been shown or even argued that the access to the estate or the use of these roads is restricted or limited in any way. PRE |
The situation examined in the present case must therefore be distinguished from that of fenced housing estates to which the public access is restricted by a decision of its inhabitants. PRE |
The only way in which the land in question can now be used is as roads. PRE |
The applicants are also currently obliged to bear the costs of their maintenance. PRE |
The Court emphasises that the burden which the applicants were made to bear is not limited in time in any way. PRE |
The Court observes that one of the arguments on which the authorities relied when refusing to expropriate the applicants' property was that the roads to be constructed on the estate had not been included in the local land development plan. PRE |
However, it reiterates that it was not in dispute that the decision on the division could be issued only when the division plan submitted by the owners was compatible with the land development plan. PRE |
The Court considers that by adopting such an approach the authorities could effectively evade the obligation to build and maintain roads other than major thoroughfares provided for in the plans and shift this obligation onto individual owners. PRE |
The Court finally notes that the Poznan Regional Court expressed serious doubts as to whether the applicants' situation was compatible with the requirements of article 1 of Protocol No 1. PRE |
This court expressly compared the applicants' position to that of the applicant in the Papamichalopoulos v Greece case [(1993) 16 EHRR 440] and considered it to be even worse. PRE |
In the Court's view, the applicants' situation in the present case was less serious than the situation examined in the Papamichalopoulos judgment, because they were not divested of all possibility of using their property. PRE |
Nonetheless, such a critical assessment on the part of the domestic court is certainly, in the Court's view, of relevance for the overall assessment of the case. PRE |
Having regard to the above considerations, the Court is of the view that a fair balance was not struck between the competing general and individual interests and that the applicants had to bear an excessive individual burden. PRE |
(paras 70-74) PRE |
In the Thomas case the factual circumstances were very different, but a similar approach was applied. Ratio |
The case concerned the exclusion of the right to compensation for the effects of road works where the opening of the road was delayed beyond a fixed time-limit, even if the delay was attributable to default by the authoritys contractor. Ratio |
I noted that, while A1P1 does not impose any general requirement for compensation, its absence may be relevant to the issue of proportionality (para 53): In deciding whether the proportionality test is satisfied, the court is entitled to treat the compensation rights created by the 1973 Act as part of the fair balance ... |
Where a class of potential claimants is excluded from those rights, the court is entitled to inquire into the reasons for the exclusion, and ask whether it serves any legitimate purpose, or leads to results so anomalous as to render the legislation unacceptable: J A Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 1083... |
On the particular case I said: Whatever its purpose, the operation of the provision in circumstances such as the present is truly bizarre. Ratio |
The diligent road- builder who completes his project in time is penalised by liability for compensation; the inefficient road-builder is rewarded by evading liability altogether. Ratio |
For the householders there is a double disadvantage. Ratio |
Not only do they suffer the inconvenience and disturbance of a protracted maintenance period, but they lose their right to any compensation for the effects of the use which they are already experiencing. Ratio |
This result is in my view so absurd that it undermines the fairness of the balance intended by Parliament, and necessary to satisfy article 1. Ratio |
In this respect it is my view a stronger case than Bugajny... The nature of the interference was very different. Ratio |
But at the heart of the court's reasoning on proportionality, as I read the decision, was the arbitrary distinction drawn by the domestic law between public roads as designated in the development plan, and internal roads which were no less public in practice, and no less appropriate for adoption by the authorities. Rat... |
The fairness of the balance between public and private interests was destroyed by the opportunity so given to the authorities to evade the responsibility otherwise imposed on them. Ratio |
At least there the state was able to raise an arguable case for distinguishing between the two categories of road. Ratio |
Here, instead, the section produces a result which is directly contrary to that which common sense would dictate. Ratio |
(paras 56-57) Ratio |
As is perhaps implicit in that passage, I regard Bugajny as a somewhat extreme example of the use of A1P1 to override the decisions of the national authorities. Ratio |
The court effectively substituted its own views for that of the national courts as to what was a public road under national law. Ratio |
However, it is relevant that the present case, like Bugajny, falls in the general field of land development and town planning, in which the state is allowed a wide margin of appreciation. Ratio |
As that case also shows, the issue of proportionality is not hard-edged, but requires a broad judgment as to where the fair balance lies. Ratio |
It is not in my view confined to cases of the truly bizarre (as in Thomas), or what might be termed irrationality or Wednesbury unreasonableness in domestic law. Ratio |
In this respect, in my view, the Convention may require some qualification to the narrow approach established by earlier authorities, such as Westminster Bank. Ratio |
The issue is not simply whether the councils action is an abuse of its powers under section 80, but whether in that action a fair balance was struck between the competing general and individual interests. Ratio |
On the other hand, there is no challenge to the compatibility of section 80 as such. Ratio |
Accordingly, the mere fact that another statutory route was available involving compensation does not in itself lead to the conclusion that reliance on section 80 was disproportionate. Ratio |
One argument on the councils side might have been that the requirement for specific planning permission under section 80 is designed to ensure that there has been an opportunity for highway considerations to be taken into account. Ratio |
That, however, does not explain why the exception can be overridden by use of a different power, the only material difference being liability to compensation. Ratio |
Further the inclusion of an exception for pre-1947 uses, regardless of whether they have been assessed on safety grounds, shows that the exclusion is related at least as much to protection of accrued rights as to safety considerations. Ratio |
It was also suggested in the course of argument that frontagers potentially at risk under section 80 could have protected themselves by seeking retrospective planning permission. Ratio |
However, it is at least doubtful whether that would be a proper use of the councils power, in relation to a use which is already lawful for planning purposes, and where the sole object is not a planning purpose, but to secure a right to compensation under a different legislative scheme. Ratio |
Mr Greens strongest argument in my view rests on the changes made by the 1991 Act. Ratio |
Previously, the access, though immune from enforcement under the planning Acts, was not lawful, and therefore, it could be said, should not be the subject of compensation (cf the Land Compensation Act 1973, section 5(4)). ARG |
As he submits, that position has now changed. ARG |
The access is to be regarded as lawful for planning purposes, and therefore, he says, there is no good reason for treating it less favourably than a pre-1948 use. ARG |
The question must however be answered principally by reference to the balance drawn by section 80 itself, allowing for the wide margin of appreciation allowed to the national authorities. Ratio |
It is in my view significant that the legislature did not adopt my recommendation that all immune uses and operations should be treated generally as though subject to planning permission, apart from the three cases specified in the section. Ratio |
There may be room for argument as to where the line in section 80 should have been drawn, but the compatibility of the section is not the issue. Ratio |
Given the availability of the power as a legitimate means of controlling use of a private access in the public interest, its use in the present circumstances was in my view neither an abuse of the councils powers nor outside the boundaries of the discretion allowed by the Convention. Ratio |
For these reasons, I would allow this appeal and (save for the second part of the declaration, relating to possible use of section 66(2), which is not in dispute) set aside the order of the Court of Appeal. RPC |
LORD NEUBERGER (with whom Lord Sumpton and Lord Hughes agree) RPC |
Mr Cusack contends that he is entitled to compensation for the loss of vehicular access to his property at 66 Station Road, Harrow, across the footway of the A409 highway. ARG |
This contention is based on the proposition that, in order to justify its right to impede that access (the access), the council should be required to rely on section 66 of the Highways Act 1980 which provides for compensation, rather than on section 80 of the same Act, which does not. ARG |
Mr Cusack puts his case on two alternative bases. ARG |
The first, which was accepted by the Court of Appeal, is that, as a matter of ordinary statutory interpretation, the council cannot choose to rely on section 80, and can only properly rely on section 66. ARG |
If this is wrong, his alternative basis, which was rejected by the Court of Appeal, is that, once one takes into account the European Convention on Human Rights, and in particular article 1 of the First Protocol (A1P1), the council must rely on section 66 rather than section 80. ARG |
I agree with Lord Carnwath that both these arguments fail, and that accordingly the councils appeal to this court should be allowed, for the reasons which he gives. Ratio |
However, I would like to add a little, not least because we are differing from the Court of Appeal. Ratio |
As has been accepted by both parties, at least as a matter of language, section 66(2) and section 80(1) of the 1980 Act each appear to be capable of justifying the councils actions in blocking the access. Ratio |
If indeed they do both apply in this case, then, subject to the effect of A1P1, it appears clear the council would be entitled to choose which of the two statutory provisions to rely on. Ratio |
In Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508, 530, having said that where Parliament has chosen to set up two different ways of preventing development and that [i]t must have been aware that one involved paying compensation but the other did not, Lord Reid concluded that in the absen... |
Indeed, it was suggested that, bearing in mind the councils obligation to conserve public funds, the council has a duty to rely on section 80. Ratio |
Thus, in a slightly different context, Lord Radcliffe said in Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470, 475, that if a highway authority can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it. ... |
It seems to me that the correct test in a case such as this, where there are two separate statutory provisions which could apply, is that, as Lord Reid stated, it is open to the council to rely on either provision, provided that it is reasonable in all the circumstances for it to do so. Ratio |
However, the Court of Appeal concluded that, despite the language of section 80(1), it could not be relied on here, because, construing the 1980 Act as a whole, section 66(2) was the specific statutory provision which applied to the councils actions in this case, and the council could not effectively disapply it by inv... |
In his clear and succinct judgment, Lewison LJ identified the relevant approach to interpretation by quoting from a judgment of Sir John Romilly MR in Pretty v Solly (1859) 26 Beav 606, 610. Ratio |
Sir John said that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to ... |
It was suggested on behalf of the council that this case represented an opportunity for this court to make it clear that canons of construction should have a limited role to play in the interpretation of statutes (and indeed contracts). ARG |
In my view, canons of construction have a valuable part to play in interpretation, provided that they are treated as guidelines rather than railway lines, as servants rather than masters. ARG |
If invoked properly, they represent a very good example of the value of precedent. ARG |
Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. Ratio |
That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim or purpose. Ratio |
To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. Ratio |
However, that does not mean that the court has a completely free hand when it comes to interpreting documents: that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular fa... |
Thus, there are some rules of general application eg that a statute cannot be interpreted by reference to what was said about it in Parliament (unless the requirements laid down in Pepper v Hart [1993] AC 593 are satisfied), or that prior negotiations or subsequent actions cannot be taken into account when construing a... |
In addition, particularly in a system which accords as much importance to precedence as the common law, considerable help can often be gained from considering the approach and techniques devised or adopted by other judges when considering questions of interpretation. Ratio |
Even though such approaches and techniques cannot amount to rules, they not only assist lawyers and judges who are subsequently faced with interpretation issues, but they also ensure a degree of consistency of approach to such issues. Ratio |
Hence the so-called canons of construction, some of which are of relatively general application, such as the so-called golden rule (that words are prima facie to be given their ordinary meaning), and some of which may assist in dealing with a more specific problem, such as that enunciated by Sir John Romilly in Pretty ... |
With few, if any, exceptions, the canons embody logic or common sense, but that is scarcely a reason for discarding them: on the contrary. Ratio |
Of course there will be many cases, where different canons will point to different answers, but that does not call their value into question. Ratio |
Provided that it is remembered that the canons exist to illuminate and help, but not to constrain or inhibit, they remain of real value. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.