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FOURTH
SECTION
DECISION
AS
TO THE ADMISSIBILITY OF
Application no.
64792/10
by TRIMEG LIMITED
against Malta
The
European Court of Human Rights (Fourth Section),
sitting on 27 September 2011 as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
regard to the above application lodged on 12 November 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Trimeg Limited, is a company registered in
Malta as from 1987, which has its registered address in Valletta. It
was represented before the Court by Dr I. Refalo, a lawyer practising
in Valletta.
A. The circumstances of the case
1. Background of the case
- The
facts of the case, as submitted by the applicant,
may be summarised as follows.
- On
5 January 1988 the applicant company acquired three pieces of land
measuring 1,864, 1,124 and 7,993 square metres, respectively, and
10,981 square metres in total, at a price of 60,000 Maltese liras
(MTL) – (approximately 140,000 euros (EUR)), with the aim of
developing the land for commercial purposes.
- At
the time of purchase, the land situated at the upper reaches of “the
valley” was included within the “limits to development”
within the meaning of the Temporary Provisions Scheme (18 November
1997) issued by the relevant authority, namely the Works Department.
The applicant alleged that the land within the development zone as
delineated by the Temporary Development Schemes was at the time
considered to have development potential, even though the exact
layout and type of development had not yet been determined. The area
in which the applicant company’s property was situated was
marked as a “white area”, which, according to the
applicant, meant that no specific type of development had yet been
determined for the site, as opposed to a “green area”,
which meant that it was to be conserved and that no development would
be allowed. Moreover, the land was situated within the boundaries of
development. It followed, according to the applicant, that
development of the zone was surely permissible.
- Between
1992 and 2006 land development in Malta was generally governed by the
guidelines set out in the Temporary Provisions Schemes. During this
time, the applicant company alleged that various properties in the
vicinity of its land, situated within the “white area”,
had been developed (mostly for residence purposes) and the Government
had built social housing complexes in the area. In 1998 (after the
scheduling order referred to in the paragraph below came into effect)
permission was given to build a road, giving access to two private
hotels situated further in from the applicant company’s land,
at the lower reaches of “the valley”.
- By
a notice (no. 583) published in the Government Gazette of 6 September
1996, the site owned by the applicant was declared to be scheduled
for conservation purposes in terms of section 46 of the Development
Planning Act (1992) (“the Act”). The Malta Environment
and Planning Authority (“MEPA”), the successor to the
Works Department, considered the site to form part of the valley
protection zone and its buffer zone, entailing level-four protection,
namely the lowest level of protection for scheduling purposes. In
consequence, the use of the land was limited to agricultural
purposes.
- A
number of different applications lodged by the applicant company on
unspecified dates, asking for permission to develop the land, were
dismissed by MEPA.
2. Proceedings before the Planning Appeals Board
- On
25 February 1997 the applicant company filed an appeal with the
Planning Appeals Board (“PAB”) against the scheduling of
its land. It argued that the area at issue should not have been
scheduled in this way since there was no reason to conserve it, apart
from the maquis vegetation found at its north eastern edge. Nor could
the land be considered to be rural, bearing in mind that it was
surrounded by a highly urbanised area. According to its experts’
reports, the applicant company was of the view that the area should
be considered suitable for commercial development and not a valley
protection zone, a notion which was not mentioned in the Structure
Plan. Nor could it be considered to be a rural conservation area, an
area of ecological importance or a site of scientific importance.
- By
a judgment of 20 September 2002 the applicant company’s appeal
was dismissed and the contested scheduling confirmed. Referring to
the findings of the Planning Directorate, the PAB considered that the
land at issue served as a buffer zone to the ecologically important
“valley” and, therefore, qualified as a level-four
protection area of ecological importance, mainly acting as a buffer
zone to the more important “valley”. The inclusion of
buffer zones had been mentioned in the Structure Plan’s
Explanatory Memorandum as falling under the heading of areas of
ecological importance and sites of scientific importance. Moreover,
the applicant company had acknowledged the existence of the maquis
vegetation, and this in itself allowed for the lowest level of
protection according to the Structure Plan and Policy RCO 12 and
therefore sufficed, according to the applicable law, in order to
declare the land to be scheduled for conservation purposes. As to the
use of the land for agricultural purposes, although this was not
established by MEPA, this was the actual use to which the land was
being put at the relevant time. In conclusion, the land was indeed of
ecological/scientific importance, and even though the term “valley
protection zone” was not a legal term, it was understood as
falling under the definition of areas which were to be protected
according to Policies RCO 15 and 1.
3. The appeal proceedings
- On
7 October 2002 the applicant company appealed to the Court of Appeal.
During these proceedings, in 2004, it further complained that the
State was infringing its property rights since: (i) MEPA had acted
outside the parameters of the law by de facto expropriating
the property, as the Act did not provide for the scheduling of
property for valley protection or buffer zones; (ii) the scheduling
was not required for a public purpose; and (iii) the Act did not
provide for payment of compensation upon the scheduling of property,
notwithstanding that its property had diminished in value (allegedly
from EUR 11,000,000 to EUR 230,000). The applicant company insisted
that when it had acquired the land it was already situated in a
developed area and, indeed, part of its land had been taken for the
purpose of building a road to guarantee access to the built-up
entertainment zone. However, as a consequence of the scheduling in
question, the land had become worthless and the applicant company’s
investment futile. Moreover, since other permits had been issued for
development of the area notwithstanding its environmental value, the
applicant company had been discriminated against in the dismissal of
its requests.
- On
2 March 2005 the Court of Appeal referred the matter to the
constitutional jurisdiction.
4. Constitutional proceedings
- By
a judgment of 16 October 2007 the Civil Court (First Hall), in the
exercise of its constitutional jurisdiction, upheld the applicant
company’s claims in part. It considered that, although there
had not been a de facto expropriation, the State had been
controlling the use of the applicant company’s property,
thereby limiting the latter’s right of ownership. It was not
necessary to go on to consider the legality of the measure, as this
was deemed to be within the competence of the ordinary courts. It
then considered it relevant that when the applicant company had
purchased the land, it had been aware that the land was situated in a
“white area”, which meant that only limited development
could take place. In the meantime the land had become a “green
area”, and development was no longer possible, in order to
protect the valley on the periphery of which the applicant’s
land was situated. The court held that while it was true and
unfortunate that the area surrounding the valley was fully developed,
it was legitimate and in the general interest for MEPA to protect
what was left of it. However, it considered that there had been a
violation of the applicant company’s rights since no
compensation had been granted to it following the permanent
scheduling of its land. Lastly, it held that the applicant company
had not been discriminated against, as the only land in a comparable
position, namely land which had been scheduled but on which
development had nevertheless been permitted, was the road built by
the Government. This constituted a project in the general interest,
as opposed to the applicant company’s project, which was solely
commercial and in the interest of private parties. Thus, the
difference in treatment had been justified.
- MEPA
and the Attorney General appealed and the applicant company
cross-appealed. By a decision of 19 January 2009 the Constitutional
Court rejected a request by the applicant company for leave to submit
new evidence.
- By
a judgment of 14 May 2010 the Constitutional Court upheld in part the
first-instance judgment and quashed the rest, dismissing all the
applicant company’s original claims. It emphasised that the
applicant had purchased the land when it had been designated as a
“white area”. Thus, the potential for development of the
land was limited and uncertain, since no guidelines or framework had
yet been put in place to regulate it. In fact, as happened in the
applicant company’s case, its land was eventually scheduled as
a level 4 buffer zone to “the valley”, which was highly
protected (level 1), being an area of ecological and scientific
importance. The scheduling of the applicant company’s land had
been in accordance with the relevant policies (namely, RCO 10-12) and
the Structure Plan, which provided that “small to medium scale
physical developments can be considered, provided no suitable
alternatives exist and features of ecological and scientific interest
are protected, in so far as a suitable environmental impact
assessment is made”. Moreover, at the date of judgment the land
had become a green area according to the 2006 Local Plan.
- In
answer to the applicant company’s grounds of appeal, it
confirmed that the validity (legality) of the scheduling was a matter
for the ordinary courts to decide, and that the site was worth
protecting in the general interest. The measure of control over use
of the property had further restricted its use in that after the
original designation of the land as a white area, which might have
permitted full development in the future, the land had subsequently
been scheduled so as to limit its use to “small to medium scale
physical development”, according to certain conditions.
However, bearing in mind the State’s margin of appreciation in
imposing planning restrictions, the aim of the measure had been
legitimate and it could not be said that every scheduling of property
required adequate compensation. In the present case the applicant
company had not been certain that it would be granted permission to
develop the land in the future, as the land had been designated as a
“white area”; thus, the applicant company had in fact
engaged in a commercial speculation project. It followed that the
applicant company did not have a legitimate expectation that it would
be granted such permits and in consequence it could not be said that
it had suffered a disproportionate burden. In the light of the
foregoing, no right to compensation arose.
- Lastly,
as to the complaint regarding discrimination, it considered that the
State could reasonably have dispelled environmental concerns when
building a road in the public interest, a matter which was within its
margin of appreciation. Similarly, the authority had not used its
discretion manifestly without reasonable foundation when it had
failed to schedule the housing estate built by the Government in an
area closer to the valley than the applicant company’s land,
and such a difference in treatment had not been illegitimate or
oppressive.
5. Continuation of the appeal proceedings
- Following
the constitutional referral mentioned above, on 7 October 2010
proceedings resumed before the Court of Appeal, which by a judgment
of 24 February 2011 dismissed the applicant company’s appeal.
The Court of Appeal considered that all the grounds raised by the
applicant company had been dealt with in the PAB’s decision and
any argument relating to the fact that the PAB had based its
decisions on reasons which had not been mentioned in the original
scheduling order could not be entertained since this matter had never
been brought to the attention of the PAB. Moreover, the applicant’s
appeal before the PAB only concerned matters of fact and not of law,
and therefore no appeal to the Court of Appeal could lie on this
ground, such appeals being limited only to points of law in
accordance with section 15 (2) of the Act. It further considered that
the scheduling had not been done on the basis of the rural character
of the land, but for the reasons enunciated by the PAB, which had
been acting within the parameters of the law.
6. Other developments
- On
18 May 2006 MEPA adopted the North Harbour Local Plan, setting up a
framework upon which the authority would base its decisions on land
use and development for the next ten years. The applicant company
submitted that, as transpired from this plan and the refusal of its
applications, further development was to be carried out in the area
surrounding “the valley”. Indeed, the 2006 plan extended
the development zone which had been earmarked in the 1996 schedules
and 2000 plan. In 2008 the 1996 Notice was amended to remove an area
of land from the scheduled property (not owned by the applicant
company) and extended the scheduled boundary to cover the entire
valley system, delineating the buffer and constraint zone. It further
transpired that there was a plan to build a further arterial road
which would pass right through the applicant company’s land
and, according to evidence given during the domestic proceedings, a
further descheduling would take place to accommodate this project.
B. Relevant domestic law
- Section
15 (2) of the Development Planning Act, Chapter 356 of the Laws of
Malta, reads as follows:
“The decisions of the Planning Appeals Board shall
be final. An appeal shall lie to the Court of Appeal constituted in
terms of article 41(6) of the Code of Organisation and Civil
Procedure from such decisions only on points of law decided by the
Board in its decision.”
- Section
46 (1) of the Act, before being repealed in 2010, read as follows:
“The Authority shall prepare, and from time to
time review, a list of areas, buildings, structures and remains of
geological, paleontological, cultural, archaeological, architectural,
historical, antiquarian, or artistic or landscape importance, as well
as areas of natural beauty, ecological or scientific value
(hereinafter referred to as ‘scheduled property’) which
are to be scheduled for conservation and may in respect of all or any
one or more of the scheduled property make conservation orders to
regulate their conservation. ...”
COMPLAINTS
- The
applicant company complained that the State had infringed its
property rights under Article 1 of Protocol No. 1 to the Convention
read alone and in conjunction with Article 14.
THE LAW
I. THE COMPLAINT UNDER ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant company complained that the State had infringed its
property rights under Article 1 of Protocol No. 1 to the Convention.
In particular, MEPA had acted outside the parameters of the law by de
facto expropriating its property, particularly because the
scheduling of property for the purposes of providing a buffer zone or
creating a valley protection system was not contemplated in the Act,
the scheduling was not required for public purposes, and the Act did
not provide for the payment of compensation upon the scheduling of a
property and the ensuing loss of value.
Article
1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Court reiterates that “Article 1 in substance guarantees the
right of property. It comprises ‘three distinct rules’:
the first rule, set out in the first sentence of the first paragraph,
is of a general nature and enunciates the principle of the peaceful
enjoyment of property; the second rule, contained in the second
sentence of the first paragraph, covers deprivation of possessions
and subjects it to certain conditions; the third rule, stated in the
second paragraph, recognises that the Contracting States are
entitled, amongst other things, to control the use of property by
enforcing such laws as they deem necessary in the general interest.
However, the three rules are not ‘distinct’ in the sense
of being unconnected: the second and third rules are concerned with
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule .” (see,
inter alia, Tre Traktörer AB v. Sweden, 7 July
1989, § 54, Series A no. 159, and Fredin v. Sweden (no.
1), 18 February 1991, § 51, Series A no. 192).
- In
the instant case the scheduling of the applicant company’s land
constituted an interference with its right to the peaceful enjoyment
of its possessions. The Court rejects the applicant company’s
contention that the measure represented a de facto
expropriation of its property. The measure amounted to a control of
the use of property, which falls to be considered under the second
paragraph of Article 1 of Protocol No. 1.
- As
to the lawfulness of the interference, the Court first of all notes
that the disputed measure was based on section 46 (1) of the
Development Planning Act (see “Relevant domestic law”
above) and that it was, therefore, provided for by law. Moreover, the
Court notes that it has only limited power to review domestic law and
it is in the first place for the national authorities to interpret
and apply their laws (see, inter alia, Tre Traktörer
AB, cited above, § 58). The Court notes that the
constitutional courts did not look into the matter, which was surely
within their competence. However, while it is true that the ordinary
domestic courts’ finding that the interference was “lawful”
referred repeatedly to policies, section 46 (1) of the Act generally
allowed for the scheduling of land of ecological or scientific value,
a reason cited in the Government notice scheduling the property.
- As
to the purpose of the interference, the Court considers that in this
case the interference pursued an aim that was in the general
interest, namely the conservation of areas of ecological and
scientific value, in accordance with international requirements.
- Lastly,
the Court has to consider the proportionality of the interference.
With respect to this, it notes that the second paragraph of Article 1
of the First Protocol must be read in the light of the principle in
the first sentence of the Article. From that sentence, the Court has
derived the requirement that an interference must strike a “fair
balance” between the demands of the general interest of the
community and the requirements of the individual’s fundamental
rights (see, inter alia, Sporrong and Lönnroth v.
Sweden, 23 September 1982, § 69, Series A no. 52). The
concern to achieve this balance is reflected in the structure of
Article 1 as a whole, and hence also in the second paragraph. There
must be a reasonable relationship between the means employed and the
aim pursued (see Tre Traktörer AB, cited above, §
59).
- In
the instant case the Court first of all notes that the interference
did not deprive the applicant company of a possession which it owned,
but solely controlled its use in a way which diminished the applicant
company’s opportunity to make a substantial profit out of it.
The Court does not find that reliance can be placed solely on the
applicant company’s view that the land had potential for
development. The fact that, when it was purchased, no specific type
of development had yet been determined for the land, it being a white
area, did not entail any assurance as to its development. On the
contrary, the Court considers that the future of the land was
evidently in doubt, and there was just as much a chance of it being
granted a development permit as of its being eventually classified as
a “green area” - as in fact happened - which required its
conservation and allowed for no development.
- Moreover,
the Court observes that the applicant company had the possibility of
complaining about this interference within an organised legal
framework. Indeed, it appealed to the PAB, and subsequently to the
Court of Appeal against the relevant decisions refusing its
applications for a permit. The Court of Appeal
referred the case to the constitutional jurisdiction which heard the
case at two instances. Thus, the Court attaches weight to the
existence of procedural and other safeguards which ensured that the
operation of the system and its impact on the applicant company was
neither arbitrary nor unforeseeable.
- Having
regard to the foregoing, particularly, the risk taken by the
applicant company when it bought the land, the Court considers that
the interference cannot be said to have been disproportionate (see,
inter alia, Fredin v. Sweden (no. 1), 18 February 1991,
§ 53, Series A no. 192, and Olbertz v. Germany (dec.),
no. 37592/97, ECHR 1999 V). Thus, the Court holds that the
respondent State did not go beyond its margin of appreciation and,
regard being had to the legitimate aim pursued by the Act, it did not
fail to strike a “fair balance” between the applicant
company’s economic interests and the general interest of the
community at large.
- It
follows that this complaint is manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention.
II. THE COMPLAINT UNDER ARTICLE 14 IN CONJUNCTION WITH ARTICLE 1 OF
PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant company further complained that it had been discriminated
against contrary to Article 14 of the Convention, as other vital
parts of the valley had been developed while its land, situated in an
area subject to less protection, had been refused development
permits.
The
relevant provision reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] 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.”
- The
Court reiterates that Article 14 complements the other substantive
provisions of the Convention and its Protocols. It has no independent
existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the application of Article 14 does not
presuppose a breach of those provisions – and to this extent it
is autonomous – there can be no room for its application unless
the facts at issue fall within the ambit of one or more of the latter
(see Mintoff v. Malta, (dec.), no. 4566/07, 26 June
2007).
- Since
the facts at issue fall within the ambit of Article 1 of Protocol
No. 1, Article 14 is applicable in the instant case.
- The
Court reiterates that in order for an issue to arise under Article 14
there must be a difference in the treatment of persons in analogous
or relevantly similar situations (see D.H. and Others v. the
Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV, and
Burden v. the United Kingdom [GC], no. 13378/05, §
60, ECHR 2008-...). Such a difference in treatment is discriminatory
if it has no objective and reasonable justification; in other words,
if it does not pursue a legitimate aim or if there is not a
reasonable relationship of proportionality between the means employed
and the aim sought to be realised (see Carson and Others v. the
United Kingdom [GC], no. 42184/05, § 61, ECHR 2010 ....).
The Court also points out that the grounds on which those differences
of treatment are based are relevant in the context of Article 14.
Only differences in treatment based on an identifiable
characteristic, or “status”, are capable of amounting to
discrimination within the meaning of Article 14 (see O’Donoghue
and Others v. the United Kingdom, no. 34848/07, § 101, ECHR
2010 ...).
- The
Court considers that, even assuming that a private individual, in
this case the applicant company, and the State can be considered to
be in an analogous position, the use the Government made of the land
in the vicinity in order to allow the construction of a road and a
social housing estate was clearly in the public interest. The
applicant company contended that the road benefited third parties
which had substantial financial interests in its development.
However, while it cannot be ruled out that the authorities also took
into account the interests of third parties, the Court finds no
reason to doubt that the use of the road was beneficial to the
community at large and pursued the legitimate aim of managing road
traffic in a more efficient way (see, mutatis mutandis,
Abdilla v. Malta (dec.), no 38244/03, 3 November 2005).
Similarly, the Court can accept that a social housing estate pursues
a legitimate aim in the general interest.
- Thus,
in the Court’s view, bearing in mind the State’s margin
of appreciation in environmental and country planning matters, the
distinctions drawn in respect of the development of the land in the
present case can be accepted as objective and reasonable.
- It
follows that the complaint under Article 14 in conjunction with
Article 1 of Protocol No. 1 is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application
inadmissible.
Lawrence Early Nicolas
Bratza
Registrar President
