AS: “Unlawful planning development and the right to peaceful
enjoyment of possessions: the Antonetto case”.
Journal of Planning & Environment Law, June, pp. 674-683.
planning development and the right to peaceful enjoyment of
possessions: the Antonetto case*
FACTS OF ANTONETTO.
the Antonetto case, the applicant to the European Court of Human
Rights (hereinafter ECtHR) was the owner of a house in the Italian
city of Turin. In 1966 the local authority of Turin granted planning
permission (taking in Italy the form of a building permit)
for the development of a piece of land neighbouring her property. The
applicant initiated litigation in front of the Italian Council of
State (Consiglio di Stato), Italy’s supreme administrative
court, claiming the building permit was illegally granted. In 1967,
the Council of State found the building permit to be illegal and
quashed it. The permit was quashed for three reasons. First, because
the minimum distance of 6 meters between the public road and the
building had been ignored. Second, because the building was taller
than the maximum permitted height set by the local development plan
(the building’s height was 15.7 meters whilst the maximum was
meters). Third, because the building’s volume was exceeding
maximum allowed in the zone where it was situated. In the meantime
however, the building had been erected according to the building
At this point according to
Italian Administrative law, the administrative decision that has been
quashed is considered to have never existed and the local planning
authorities are bound to reconsider the matter. It appears that the
breach of planning regulations was such, that it prevented the local
authority legally granting planning permission for this building.
Consequently, in these circumstances the building had to be
as having been built
unlawfully and local authorities had to apply the regulations
concerning unlawful developments. According to such regulations, if
the grant of planning permission is unlawful, planning authorities
must order the owners of the unlawful construction to demolish the
building in order to restore legality and if the building is not
demolished, then the planning authorities must do it themselves.
The applicant, after the illegal
planning permission had been quashed, asked the local planning
authority to execute the court decision and proceed with an order
requiring the demolition of the unlawful building since granting a
new building permit was legally impossible as explained above.
However, the local authority didn’t do any of that, and
consequently the applicant returned in front of the Italian Council
of State and asked for a court order using the procedure of giudizio
di ottemperanza, the equivalent of a mandamus in British law. In
1970 the court granted such an order. But then the local planning
authority decided to grant planning permission. The applicant went
back to court and asked that this permission should be quashed, which
happened by a decision of the Council of State of 1972. Due to
persistent refusals from local authorities to execute the judgement,
the applicant had to ask for another court order from the Council of
State ordering the local authority to execute its judgement and this
too was granted in 1975.
Finally, in 1976 the local
planning authority ordered the owners of the unlawful building to
demolish it (using the equivalent in British Law of an enforcement
notice). The owners appealed against this order in front of the
Italian administrative courts. The proceedings ended in 1980 with the
Council of State dismissing the appeal against a 1978 judgement of
the Regional Administrative Court (Tribunale Amministrativo
Regionale) rejecting the initial application against the
Subsequently, the local planning
authority refused to demolish themselves the unlawful building and
were brought numerous times before the Council of State. The court,
in each of its judgements in 1985 and 1986 stated that local planning
authority must proceed with demolition of the unlawful buildings in
order to abide by the rule of law.
1988 Italian parliament passed a law that allowed for the
legalisation of unlawful constructions even if they did not fulfil
the ordinary legal requirements for the grant of planning permission.
In application of this law, the local planning authority granted
retrospective planning permission in 1988. Finally, in 1989 the
Council of State dismissed an action brought by Antonetto stating
that the situation was covered by the 1988 statute.
1989 Irma Antonetto, applied to the European Court of Human Rights,
arguing a breach of article 6 (right to a fair trial) and article 1
of the First Additional protocol (protection of property).
JUDGEMENT IN ANTONETTO.
On the 16th of
December 1999 the ECtHR unanimously ruled that the application was
admissible on both of these grounds.
Finally, after more than ten years from the application being
the application was granted on the 20th of July 2000. The
Second Section of the ECtHR unanimously found that Italy had violated
both article 6 of the Convention and article 1 of the first Protocol.
The violation of Article 6 par. 1
(right to a fair trial).
court interpreted article 6 par. 1, which guarantees inter alia
the right of access to a court, as also requiring the enforcement
of final judicial decisions. The ECtHR stated that a right of access
to the courts would be useless if the internal legal system of a
contracting state permitted a final and compulsory court decision to
remain without enforcement.
is a principle that had already been laid down in previous decisions
of the ECtHR.
However the ECtHR in the present case applied this principle to the
judicial review of administrative decisions. The court stated that
this principle is even more important in the context of litigation
concerning administrative decisions (in French: ‘contentieux
administratif’) when the action involves a civil right of the
litigant. The court stresses the fact that when someone applies to a
court for the annulment of an administrative decision (in British law
this would be through an application for judicial review) he not only
aims to see the disappearance of the administrative decision he
attacks, but also and foremost the extinction of its effects. The
court ended by stating that if the administration refuses to execute
the decision of the court or unreasonably delays its execution the
guarantees granted by article 6 which benefited the litigant during
the judicial phase of the proceedings would be useless.
court applied this principle to the facts of the case and found a
breach of article 6 since the Italian local planning authorities had
refused for a long period of time to execute a final court decision
(and in fact never executed it).
is also very important to note that the ECtHR refused to accept the
argument based on the action of planning authorities having become
lawful after 1988, when legislation was enacted allowing unlawful
developments to be legalised even when there was a judicial decision
recognising the unlawfulness.
The court concluded that this legislation was irrelevant as, if the
local authority had promptly restored the rule of law in 1967 when
the Council of State quashed the planning application and the
building next to the applicant’s property became unlawful,
statute would have not found any grounds for application.
b) The violation of article 1
of the first additional protocol (right to protection of property).
reasoning by which the ECtHR found a violation of article 1 of the
first additional protocol protecting property, took two distinct
the court examined whether there has been in this case a breach of
the applicant’s right of property. The court found that there
been a breach of the applicants right of a ‘peaceful
his possessions’ as prescribed by the first phrase of
of article 1. The court relied on the fact that the local planning
authorities refused to apply the regulations concerning unlawful
constructions and this had the consequence that the unlawful building
stayed in place. The consequence was that it partially restricted the
view and light of the applicant’s neighbouring property
in the decrease of its value. Consequently, the ECtHR found that the
Italian authorities were responsible in these circumstances for the
interference to the applicant’s right of property.
the court examined whether this interference with the
right of property could be justified by striking a ‘fair
test between the demands of public interest and the requirements of
protection of the individual’s fundamental rights. The court
started by concluding that article 1 of protocol 1 requires above all
that any interference of public authorities with the right of
peaceful enjoyment of property must be legal. The court arrived at
this conclusion for two reasons. Firstly, because of the wording of
article 1 itself, which states in its first paragraph that
deprivation of property is only allowed ‘subject to the
provided for by law’ and also paragraph 2 allows states to
the use of possessions by enacting ‘laws’.
Secondly, the court
stated that one of the fundamental principles of a democratic society
and inherent to every article of the Convention is the rule of law,
which implies the duty of a state or public administration to accept
a judgement made against it. The court concluded that when public
authorities act contrary to the rule of law, when interfering with
someone’s right of property, the interference cannot be
in the public interest
the enactment of the 1988 statute, under Italian Law, once the
erection of the building had been held by the courts to be illegal,
the building could not be legalised by a subsequent decision of the
planning authorities. Consequently, the ECtHR ruled that the balance
test could not be used, and the interference was in breach of article
1 of the additional protocol. Last but not least, the court noted
that this conclusion was not vitiated by the consideration that since
the coming into force of the 1988 statute, the interference had
acquired a legal basis in Italian law.
a result of these breaches of human rights protected by the
Convention, the court awarded damages equivalent to the loss of the
commercial value of the applicant’s property due to the
of the unlawful building. It also awarded moral damages to compensate
for the ‘deep feeling of injustice’ because of the
Italian administrative bodies had not complied with the judgements of
the Council of State. It also awarded a sum for expenses and costs.
IMPLICATIONS FOR BRITISH PLANNING LAW.
case of Antonetto has so far gone unnoticed by British
scholars. Of course the findings of the breach of human rights in
this case should be interpreted in the light of its special and
extremely unusual circumstances, which consequently gives them a
limited value as a precedent. However, it is considered that the case
of Antonetto v. Italy is quite important in planning law and
particularly in the field of unlawful development and enforcement of
planning regulations. The present position is summed up by Richard
as: ‘If a planning authority decides not to take action in
relation to breach of planning control, there is effectively nothing
which any other person can do as a matter of law under the planning
system’. This statement may now have to be qualified, in the
light of Antonetto.
key element in order to understand this case and apply its principles
into British Law, is the fact that in Italian Planning Law
when an administrative decision granting planning permission is
quashed, then planning authorities have to re-examine the matter. In
the case where a building had been built according to planning
permission and that permission later is quashed by a court decision,
if legally granting a new planning permission is impossible, then the
building becomes unlawful. As a consequence of that, the planning
authorities have to apply the relevant legal provisions concerning
being said, it becomes obvious that this case is not just about a
decision of the Italian Council of State not being executed by local
planning authorities. It is more importantly about planning
authorities avoiding the enforcement of planning legislation when an
unlawful building violates the right to protection and peaceful
enjoyment of a neighbour’s property.
planning permission must be obtained for any
land, which is defined as the ‘carrying out of building,
engineering, mining or other operations in, on, over or under land or
the making of any material change in the use of any building or other
Planning developments initiated and completed without any sort of
are unlawful and according to section 171A(1) of the Town and Country
Planning Act 1990, they may give rise to enforcement by planning
the case of unlawful developments the principal means of enforcing
planning control are enforcement notices and breach of condition
notices (there are also other remedies available such as stop notices
or court orders for injunctions that are seldom used).
The important part about this is that local planning authorities have
a discretion as to whether serve such enforcement notices.
Antonetto, would seem to have the effect of making it more
difficult for planning authorities to avoid taking enforcement action
in some instances, when unlawful planning developments are
interfering with a neighbour’s right of peaceful enjoyment of
possessions as guaranteed by article 1 of the first additional
protocol to the European Convention of Human Rights.
shall examine first in which circumstances this can apply, and
secondly what can the consequences for the scope of discretion
exercised by planning authorities be.
a) Infringement with a
neighbour’s right of property.
to subsection 2 of section 172 of the Town and Country Planning Act
1990, local planning authorities ‘may’ issue an
enforcement notice ‘where it appear to them that it is
to issue the notice, having regard to the provisions of the
development plan and to any other material considerations’.
European Convention of Human Rights has been considered by courts in
this country as a material planning consideration, even before its
incorporation by the Human Rights Act.
Since the Human Rights Act 1998, it is undoubtedly a material
consideration as section 6 of the Act makes it unlawful for any
public authority to act in a way that is incompatible with Convention
rights except where provisions of primary legislation prevent the
authority from acting differently. Consequently, it is important to
examine the circumstances that the ECtHR found in Antonetto
that an unlawful construction infringed a neighbour’s right
peaceful enjoyment and protection of property as guaranteed by
article 1 of the first additional protocol.
The ECtHR sets conditions
for such an infringement. It is not each unlawful construction that
can lead to a breach of article 1 of the first additional protocol.
The unlawful construction must (at least partially) restrict the view
and light of the neighbouring property thus resulting in the decrease
of its value. In that case there is an infringement of the right of a
‘peaceful enjoyment of possessions’ as prescribed
by the first
phrase of paragraph 1 of article 1. It should be noted that it is
neither a ‘deprivation’ of property (second phrase
of paragraph 1
of article 1), neither a ‘control of the
use’ of property
(paragraph 2 of article 1).
are two important elements in the court’s approach. First,
must be a nuisance caused by the neighbouring unlawful construction.
In Antonetto it was the fact that the neighbouring estate had
its view and light decreased.
However, there could be all sorts of other nuisances too caused by
neighbouring developments such as dust, noise, light, vibrations,
odours, humidity, steam etc. Secondly, these nuisances must affect
(needless to say in a negative way) the financial value of the
neighbouring property. This is a restatement of the rule that article
1 does not guarantee the right to a peaceful enjoyment of possessions
in a pleasant environment.
As the Court has stated, a general complaint that unlawful buildings
caused adverse effects to the surrounding environment is insufficient
to justify the application of article 1 of protocol number 1.
An environmental nuisance can only be considered if it affects the
financial value of property.
This should normally be the case when an unlawful development causes
a nuisance to a neighbouring estate.
the case of López Ostra v. Spain
the Court held that there had been a violation of the
right to respect of private and family life (article 8) because she
had to live in very difficult conditions next to a waste treatment
plant that was allowed to operate without a licence and emitted gas
fumes, pestilential smells and contamination. However the case is
factually very different from Antonetto, since it did not
involve article 1 of the first additional protocol and the ECtHR
refused to examine the lawfulness of the operation of the plant and
stated that it was not a matter for an international court to examine
since it was an issue pending in front of national courts.
in Antonetto, the ECtHR ruled that there had been a violation
of the applicant’s right to peaceful enjoyment of possessions
the competent planning authorities failed to stop the infringement
caused to the applicant’s right by the unlawful building.
though the interference was not directly caused by an action of a
public authority (and the European Convention on Human Rights does
not apply to actions caused by private individuals) public bodies can
be held responsible if they fail to prevent or stop (as in this case)
the infringement of a citizen’s human right protected by the
b) Exercising discretion over
enforcement of planning regulations.
Britain, even if developing without planning consent is not yet by
itself a criminal offence
as in other jurisdictions, it is still unlawful to do so.
As it has already been mentioned, planning authorities are given a
discretion whether to take enforcement action or not. Even though
there is little case law on challenges to refusals to take
enforcement action, some have been successful when there was a clear
breach of planning control. There have even be complaints for
maladministration to the Local Government Ombudsman, which resulted
in a recommendation that compensation should be paid, due to failure
to take enforcement action.
In Antonetto, the
court found that in some cases (as described above) unlawful
development might breach a neighbour’s right to protection of
property. It is therefore likely that in similar cases, the
discretion of planning authorities to take enforcement actions can be
diminished, by making it more difficult for them to avoid taking
action. As Timothy Corner has put it: ‘… the
likely to have effect in the field of discretion and in particular it
could well […] make it more difficult for authorities
responsible for enforcing environmental legislation to avoid taking
First of all, as described
above, the fact that there is an infringement in a
right of property as guaranteed by the European Convention of Human
Rights, definitely makes it a material consideration for local
authorities that they must take into account, when deciding whether
to take enforcement action or not. As the court restated in
Antonetto, sometimes an infringement of article 1 can be
justified when the ‘fair balance’ test is struck
and private interests. However, in Antonetto the ECtHR also
restated the rule established in Iatridis v. Greece
that when the public authority has acted illegally, the rule of law
commands that the balance test cannot be applied. Consequently, when
a decision is affecting the right of property (in a way described
above) and is contrary to the rule of law and is arbitrary, then it
is automatically contrary to article 1 of the first additional
protocol. Normally public authorities, when acting in breach of a
Convention right, can use the fair balance test in order to justify
their acts. This justification entitles the respondent public
authorities to defend on a broad front.
In such a case public authorities enjoy a wide margin of
but when they act in breach of the rule of law they are
from using the balance test as a defence.
This then raises the
difficult question of the extent that under British Law the local
authority will be acting in breach of the rule of law by not taking
enforcement action against unlawful development. As the jurisprudence
of the Court of Strasbourg demonstrates it, this can either be a
breach of national law, of a general principle of international law
or of a rule set out in the Convention itself. Antonetto is an
example where the court found a breach of the Convention based on the
Italian authorities failure to comply both with Italian law itself
and article 6 of the Convention. The ECtHR considered that by
refusing to comply with a final judgement of a national court, the
authority was acting contrary to article 6 which by guaranteeing the
right to a fair trial implies that judgements even when rendered
against public bodies must be executed.
test of lawfulness can also be applied to national law provisions by
examining whether public authorities have acted lawfully or not. In
such a case however, the Court has granted itself limited power to
review compliance with domestic law.
This limited power of review appears to extend only to situations
where national legal provisions are applied manifestly erroneously or
so as to reach arbitrary conclusions.
However, the principle of lawfulness also implies that the applicable
provisions of domestic law must be sufficiently accessible, precise
applying these findings to English Planning law, two situations
should be distinguished, bearing in mind that if planning authorities
delay too much in taking enforcement action against building
operations unlawful developments become lawful after the four-year
period for taking enforcement action, starting on the date on which
operations were substantially completed, elapses.
This is so even if they are unaware of the breach of planning
there is the case where local planning authorities decide not to
consider at all assessing whether they should take enforcement action
against an unlawful development that interferes with a
right to peaceful enjoyment of property. In this case, it appears
that although this previously would not have been unlawful, it could
now constitute a breach of article 6 of the European Convention,
especially if the affected neighbours complain to the planning
authorities. When circumstances arise involving article 1 of the
first additional protocol, then article 6 may be applicable too and
give procedural protection by providing a right to a fair hearing
etc. It would be likely then, that when someone’s property is
affected by an unlawful development local planning authorities must
positively make a determination as to whether they should take
enforcement action in relation to the unlawful development. Article 6
would also indicate that the neighbour should be involved in the
determination. Consequently, refusing even to consider whether the
local authority should take any sort of action, seems to be a breach
of article 6 which could lead in the automatic finding of a breach of
article 1 of the First Protocol, by an application of the
mechanism describe above which prevents a balance test between
competing public and private interests to be struck. Of course this
does not mean that local authorities would necessarily have to reach
a decision favouring the neighbour whose rights are affected; it just
creates a duty for local authorities to apply article 6 by
considering the matter promptly (however as explained infra
their discretion not to give much weight to the neighbour’s
seems to have been diminished). Consequently, there could be a breach
of the right to protection of peaceful enjoyment of property in cases
where someone’s property is affected by an unlawful
local planning authorities, even though they are aware of this, delay
considering taking action or even refuse to take action and then the
situation is rendered legal by the elapse of the four year period.
the situation is more complicated in the case where the local
planning authority actually considers whether it should take
enforcement action and decides not to. As before, it should be
examined whether the mechanism of ‘estoppel’
established in the
Iatridis case can find any grounds for application.
discussed before, the law concerning unlawful development gives great
discretion to local planning authorities whether to take enforcement
action. However, when an issue arises involving the right to property
the ECtHR examines if applicable provisions of national law are
sufficiently accessible, precise and foreseeable in order to assess
the lawfulness of public authorities’ actions. It is arguable
planning authorities have been granted so much discretion by the
legislature in initiating or not enforcement action, that their
decisions in this field cannot be foreseeable. Moreover, they have no
legal obligation to give reasons for their decision not to take
enforcement, though this could be required now by article 6.
Consequently, it appears that the relevant provisions of British law
concerning unlawful development are so vague and grant so much
discretion, that they permit for almost any sort of decision to be
made by public authorities in this area, striking out any degree of
predictability in their action. Of course this factor is by itself
insufficient to make all refusals to take enforcement action unlawful
and thus incompatible with article 1 of the additional protocol.
However, it is a material consideration that the ECtHR takes into
in order to assess whether a fair balance has been struck between
private and public interests.
the ‘estoppel’ mechanism finds no grounds for
there is also the question of proportionality: is the infringement of
a neighbour’s right of property outweighed by public interest
considerations? The fact that English law grants planning authorities
an extremely wide discretion in initiating enforcement action could
lead to a finding that there has been a violation of the Convention.
Moreover, it is also important that the unlawful developer may appeal
against enforcement actions to the Secretary of State, who rehears
the case ab initio and on the merits. On the contrary,
neighbours and other interested third parties may not appeal against
refusals to take enforcement action and for them the only possible
way to challenge such decisions is the limited remedy of judicial
review. Also, if planning authorities are reluctant and
in taking enforcement action this could lead to people preferring to
develop unlawfully in order to avoid the costs, the delays and the
uncertainty of having to apply for planning permission. This could be
a way to subversively bypass the procedures for applying for planning
permissions, which today tend to protect more efficiently third party
Thus, it would be a way to side-step and deny to neighbours (and
other people whose properties are affected by the development) their
right of a fair hearing in front of planning authorities, as
guaranteed by article 6 of the Convention. Of course, in the
it was decided that judicial review gives sufficient procedural
safeguards to render lawful a breach of article 6 in an earlier
non-judicial stage in the procedures. According to Neil Collar,
Alconbury indicates that when deciding to take enforcement
action there is no necessity for planning authorities to comply with
article 6 since such decisions can be challenged through
non-statutory judicial review. However, the ECtHR in the more recent
case of Hatton and Others v. UK,
held that judicial review is not a sufficiently effective remedy when
Convention rights are involved, due to its limited scope of review of
the proportionality balance striked by public authorities. This case
seems to call into question the findings of the Alconbury
decision, at least when the proportionality test is
engaged, since the ECtHR suggests in Hatton that judicial
review in not an effective remedy for assessing Convention rights.
these arguments if combined and assessed in the light of the
proportionality principle seem to indicate that when an unlawful
planning development constitutes an infringement of a
right to peaceful enjoyment of property, then the planning
authorities’ discretion not to take enforcement action is
diminished. It appears that they could refrain to take enforcement
action only in case of compelling public interest not to do so, such
as when the unlawful development fulfils a particularly important
public aim. The general interest seems to be the only ground on which
an interference with the right of property of neighbours caused by
unlawful developments could be justified. As it has been held in
Sparkes v. SETR
‘Article 1 of the first protocol, concerned with the
of the property, makes clear that this Article does not in any way
impair the right of the State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest’. In any case, local planning authorities
have to strike a proportionate balance and this in turn can now
reviewed by the courts.
Apart from enforcement of
planning controls, Antonetto is also extremely relevant and
important in the area of retrospective grants of planning permission.
This occurs when a structure has been erected unlawfully and the
building operator asks for planning permission afterwards. In R.
v. Leominster DC Ex p. Pothecary,
it was held that in considering an application for retrospective
planning permission, a local planning authority is entitled to have
regard to the fact that the building is already in existence and to
decide what weight to attach to this. This case involved the unlawful
erection of a lambing shed adjacent to a neighbouring house, which
was likely to give rise to nuisance by way of noise and smell, thus
affecting the neighbour’s right of peaceful enjoyment of
possessions as analysed above. Of course the Human Rights Act 1998
was not in force at the time the case was decided. According to Lord
Justice Schiemann ‘There are policy reasons […]
giving much weight to the existence of a building put up without the
necessary planning permission, but these will not prevail in every
case. They will prevail in some’. It is arguable that if the
same case had to be decided today when the Human Rights Act has
entered into force, the solution would have been different on the
basis of the right to peaceful enjoyments of possessions as
interpreted in Antonetto. Even if the ECtHR’s reasoning does
not prevent planning authorities from taking into consideration the
fact that an unlawful structure has already been built when assessing
the merits of a retrospective planning application (as held in the
Pothecary case), it will be very difficult for them to allow this
consideration to prevail when the structure erected unlawfully
interferes with a neighbour’s right of peaceful enjoyment of
possessions. As analysed before, this will be a matter of
proportionality for the local planning authorities to assess under
the power of review of courts.
The facts in Antonetto
were indeed very exceptional and Italian law on unlawful development
is very different from British law. Therefore one must be cautious in
applying it to the British planning context whose main characteristic
is discretion thus permitting great flexibility. In contrast, in
Italian law, unlawful development is a criminal offence and
constructions erected unlawfully must most of the times be
However, it is hoped that it has been shown that this case has
important implications as to how the discretion to take enforcement
action against unlawful developments must be exercised. Where the
enjoyment of property rights would adversely be affected by new
development, convention rights are brought into play. British
planning authorities must now act in conformity with the Human Rights
Act 1998. Moreover, as described before, in Britain there is this
strange legal position by which unauthorised development is
‘unlawful’ but yet not a criminal offence.
development may not be the best solution in order to protect affected
human rights, but still the present legal framework on unlawful
development does not take them into consideration in a satisfactory
is submitted that the above arguments are pertinent to proposed
government’s review of the law of unlawful development. Even
though, the latest green paper on Planning contains almost nothing on
unlawful development, it accepts that, as shown above, the law in
this area is ‘unduly complex and cumbersome’ and it
law must take into account the rights of people neighbouring unlawful
developments. That is now a matter of human rights.
Antonetto v. Italy, European Court
of Human Rights, Second Section, 20/07/2000, Application n. 15918/89.
Case unreported in English; Original text judgement available in French
only from the European Court of Human Rights website at
droit public (Paris II), D.E.A. de droit public comparé
(Paris I), Research student at City University London.
See the recent Unified body of
laws of the building statutes and regulations, which incorporates and
consolidates the Italian Planning statutes and regulations in a unique
text (Testo unico delle disposizioni legislative e regolamentari in
materia edilizia, Decreto del Presidente della Repubblica n. 380, 6
giugno 2001). It is published in the Italian Official Journal, Gazzetta
Ufficiale no. 245, 20/10/2001, supplemento ordinario n. 239. (in
Decision of admissibility of
application number 15918/89 by Irma Antonetto against Italy. European
Court of Human Rights, Second Section, 16 December 1999 (In French
only). All ECtHR’s judgements mentioned herein are available
freely from the Court’s website at http://hudoc.echr.coe.int/
This is another example of the
ECtHR being more concerned about applying article 6 and the right to a
trial in a reasonable time to national court’s proceedings,
than ensuring that its own proceedings are not dilatory.
See the ECtHR judgements of
Immobiliare Saffi v. Italy, 28/07/1999, n. 22774/93, par. 63, and
Hornsby v. Greece, 19/03/1997, par. 40, cases available on the
court’s website see above n. 2.
The ECtHR has already examined
whether this kind of retrospective statutes that legalise
administrative decisions found to be illegal by court decisions are
contrary or not to article 6. In the case of Agoudimos and Cefallonian
Sky Shipping co. v. Greece, (28/06/2001, case available on the
court’s website see above n. 2), the ECtHR found that such
statutes interfering with the judicial power rendered useless the right
to a trial and consequently that they were in breach of article 6.
Environmental Law, Sweet & Maxwell, London 1995, page 119-120.
As also in other similar judicial
systems such as France or Greece for example.
The position is broadly the same
Sections 55(1) and 57(1) of the
Town and Country Planning Act 1990 (hereinafter TCPA).
Planning Permission can be
granted either by Local Planning Authorities or by the Secretary of
State who can make development orders that provide for the granting of
planning permission for a specified development or a class of
According to Richard
Burnett-Hall, above n.6, paragraph 3-123.
See on this point the
Butterworth’s Planning Law Service, Division F, nos. 35 and
See on this point William
Upton, The European Convention on Human Rights and Environmental Law,
JPL, 1998, April, page 315. Also in Britton v. Secretary of State for
the Environment  JPL 617, which involved an application for
judicial review against the partial dismissal by the Secretary of State
of an appeal against an enforcement notice, the Court held that
although the Secretary of State was not obliged to apply the
Convention, having taken it into account as a matter of policy, he was
bound to decide whether the proposed course of action would violate it.
On the three different forms of
protection of property that the first article of the first additional
protocol contains, see the case of Sporrong and Lönnroth v.
Sweden, 23/09/1982, available from the ECtHR website see above n. 2.
It has already been contended
that a consequence of the Human rights Act 1998 is that in the process
of making planning decisions ‘… matters such as
loss of view and value should not be ignored, but rather should be put
in the balance in that discernment of the public interest which is
necessary in the making of a sound decision’, Stephen Crow,
What price a room with a view? Public interest, private interests and
the human rights Act, J.P.L. 2001, Dec, 1359.
This is consistent with the
fact that neither the Convention nor the ECtHR’s
jurisprudence establish a right per se to nature preservation. See
Justine Thornton and Stephen Thomas, Human Rights and Environmental
Wrongs - Incorporating the European Convention on Human Rights: Some
Thoughts on the Consequences for UK Environmental Law, 1999 JEL 35.
See the Final Decision as to
the Admissibility of Application No. 41666/98 by Sofia Kyrtatou
& Nikos Kyrtatos v. Greece, 13 September 2001,
‘…it does not appear that the applicants raised
any particular complaint concerning an issue falling under Article 1 of
Protocol No. 1, other than the adverse effects that the impugned
measures could have to the surrounding environment. This general
complaint does not suffice to justify examination of the case under
Article 1 of Protocol No. 1’(available from the ECtHR website
see above note n. 2).
See on this point the article
by Robin Purchas and Joanna Clayton, A Field day for crackpots? The
Human Rights Act, development projects and control. JPL 2001, Feb,
ECtHR, López Ostra
v. Spain, 09/12/1994, available from the ECtHR website see above note
Ibid. at paragraph 55.
The Government in its latest
Green Paper on Planning has raised the need to criminalise unlawful
planning development: ‘developing without planning consent or
in breach of that consent is not an offence. There is a case for
reviewing the law.’, See the latest Government’s
Green Paper on Planning, Planning: Delivering a Fundamental Change,
published 12 December 2001, paragraph 5.69 . Available from the DTLR
website at http://www.planning.dtlr.gov.uk/consult/greenpap/index.htm
According to section 171A(1) of
the TCPA 1990, as mentioned above.
On all of these points see M.
Purdue – E. Young – J. Rowan-Robinson, Planning Law
and Procedure, Butterworths, 1989, Chapter 12 The Enforcement of
Planning Control, pages 298-299.
Timothy Corner, Planning,
Environment and the European Convention on Human Rights, JPL 1998,
Case of Iatridis v. Greece,
25/03/1999, no. 31107/96.
See on this point David Hart,
The Impact of the European Convention on Human Rights on Planning and
Environmental Law, JPL 2000, February, page 126.
‘[The court] finds it
natural that, in an area as complex and difficult as that of the
development of large cities, the Contracting States should enjoy a wide
margin of appreciation in order to implement their town-planning
policy’, paragraph 69, Sporrong and Lönnroth v.
Sweden, see above note n. 14.
Sturesson v. Sweden, 21/02/ 1990, paragraph 47.
See the case of Beyeler v.
Italy, 5/01/2000, paragraph 108.
See the ECtHR cases of Hentrich
v. France, 22 /09/1994, paragraph 42; Lithgow and Others v. UK,
8/07/1986, paragraph 110; Beyeler v. Italy, paragraph 109.
Town and Country Planning Act
1990, Section 171B(1) and also section 191(2). The four-year time limit
applies to the carrying out without planning permission of building,
engineering, mining or other operations in, on, over or under land.
There is also a longer ten-year period for breaches of planning
conditions and unauthorised changes of use except where they consist in
the change of the use of any building to use as a single dwelling house
or relate to mining operations. See TCPA section 171B(3).
See the case of Hentrich v.
France, cited above, at paragraph 56.
See mutatis mutandis, Beyeler
v. Italy, cited above, paragraph 110.
A research has shown
‘… the almost universal dissatisfaction with the
present mechanism and procedures of planning enforcement.’ in
J. Jowell, D. Millichap, The Enforcement of Planning Law: a Report and
Some Proposals, JPL 1986, 482; The situation today seems not to have
varied very much since according to S. Bell and D. McGillivray
(Environmental Law, Blackstone Press 2000, page 342-3) in recent years
there has been a significant reduction in enforcement procedures.
All planning applications must
today be publicised to some extent, which gives third parties a chance
to participate in the outcome. As the Government states in its Planning
Policy Guidance Note 1: General Policy and Principles, paragraph 57:
‘All planning applications must be publicised by the local
planning authority and registers of all planning applications must be
available for public inspection’ (Available online at
http://www.planning.dtlr.gov.uk/ppg/). Also, the Scottish Executive
states in its National Planning Policy Guideline, NPPG 1, The Planning
System, paragraph 57: ‘Planning authorities should respond to
comments and objections received to explain what decisions have been
taken and why. Public interest in planning extends beyond those most
directly affected by a proposal to the wider community’
(Available online at
R. (on the application of
Alconbury Developments Ltd) v. Secretary of State for the Environment,
Transport and the Regions,  JPL 920 (HL).
Neil Collar, Planning and Human
Rights, W. Green & Son, 2001, at page 137 par. 8.09.
Hatton and Others v. the United
Kingdom, 2/10/2001, application n. 36022/97.
On this point see Christopher
Hancock, Hang in the Balance, Estates Gazette, 19 January 2002, p. 122.
Also Michael Purdue, Current Topics, JPL 2002, 255.
Sparkes v. Secretary of State
for the Environment, Transport and the Regions  P.L.C.R. 279
(QBD); see also a Case Comment in JPL 2000, Oct, 1077-1078. The case
involved an appeal against an inspector’s decision to uphold
an enforcement notice requiring in an Area of outstanding natural
beauty the demolition of a building which did not accord with submitted
plans, even though most of it was permitted development.
About the increased review of
administrative decisions in cases involving human rights, going farther
than the ‘classic English public law concepts’ of
irrationality, illegality and procedural impropriety, see R. (on the
application of Daly) v. Secretary of State for the Home Department
 2 WLR 1622. Also Ben Pontin, Human Rights and Judicial Review
(editorial), ELM 13  5.
R. v. Leominster DC Ex p.
Pothecary  JPL 335 (CA).
See articles 30 (L) to 45 (L)
(in Chapter II: Sanctions) of the Unified body of laws of the building
statutes and regulations, above no. 1.
See the latest
Government’s Green Paper on Planning, paragraph 5.68, above
note no. 21.