CITE AS: “Unlawful planning development and the right to peaceful enjoyment of possessions: the Antonetto case”.  [2002] Journal of Planning & Environment Law, June, pp. 674-683.

Unlawful planning development and the right to peaceful enjoyment of possessions: the Antonetto case*

By Jean-Jacques Paradissis¤
I.                   FACTS OF ANTONETTO.
In 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)[1] 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 15 meters). Third, because the building’s volume was exceeding the maximum allowed in the zone where it was situated. In the meantime however, the building had been erected according to the building permit.
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 considered 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 enforcement notice.
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.
In 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.
In 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).
On the 16th of December 1999 the ECtHR unanimously ruled that the application was admissible on both of these grounds.[2] Finally, after more than ten years from the application being submitted,[3] 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.
a)     The violation of Article 6 par. 1 (right to a fair trial).
The 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.
This is a principle that had already been laid down in previous decisions of the ECtHR[4]. 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.
The 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).
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[5]. 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, this 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).

The reasoning by which the ECtHR found a violation of article 1 of the first additional protocol protecting property, took two distinct stages.
Firstly, the court examined whether there has been in this case a breach of the applicant’s right of property. The court found that there has been a breach of the applicants right of a ‘peaceful enjoyment of his possessions’ as prescribed by the first phrase of paragraph 1 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 resulting 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.
Secondly, the court examined whether this interference with the applicant’s right of property could be justified by striking a ‘fair balance’ 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 conditions provided for by law’ and also paragraph 2 allows states to regulate 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 justified in the public interest
Before 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.
As 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 existence of the unlawful building. It also awarded moral damages to compensate for the ‘deep feeling of injustice’ because of the fact that Italian administrative bodies had not complied with the judgements of the Council of State. It also awarded a sum for expenses and costs.
The 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 Burnett-Hall[6] 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.
The key element in order to understand this case and apply its principles into British Law, is the fact that in Italian Planning Law[7] 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 unlawful development.
This 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. 
In England,[8] planning permission must be obtained for any ‘development’ of 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 land’.[9] Planning developments initiated and completed without any sort of planning permission[10] are unlawful and according to section 171A(1) of the Town and Country Planning Act 1990, they may give rise to enforcement by planning authorities.
 In 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[11]). The important part about this is that local planning authorities have a discretion as to whether serve such enforcement notices.[12] 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.
We 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.
According 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 expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations’. The 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.[13] 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 of 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).[14]
There are two important elements in the court’s approach. First, there 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.[15] 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.[16] 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.[17] An environmental nuisance can only be considered if it affects the financial value of property.[18] This should normally be the case when an unlawful development causes a nuisance to a neighbouring estate.
In the case of López Ostra v. Spain[19] the Court held that there had been a violation of the applicant’s 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.[20]
Finally, in Antonetto, the ECtHR ruled that there had been a violation of the applicant’s right to peaceful enjoyment of possessions since the competent planning authorities failed to stop the infringement caused to the applicant’s right by the unlawful building. Even 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 Convention.
b) Exercising discretion over enforcement of planning regulations.
          In Britain, even if developing without planning consent is not yet by itself a criminal offence[21] as in other jurisdictions, it is still unlawful to do so.[22] 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.[23]
          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 Convention is 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 action…’[24].
          First of all, as described above, the fact that there is an infringement in a neighbour’s 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 between public and private interests. However, in Antonetto the ECtHR also restated the rule established in Iatridis v. Greece[25] 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.[26] In such a case public authorities enjoy a wide margin of appreciation,[27] but when they act in breach of the rule of law they are ‘estopped’ 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.
The 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.[28] 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.[29] However, the principle of lawfulness also implies that the applicable provisions of domestic law must be sufficiently accessible, precise and foreseeable.[30]
In 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.[31] This is so even if they are unaware of the breach of planning control.
Firstly, 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 neighbour’s 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 ‘estoppel’ 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 right 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 development and 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.
Secondly, 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.
As 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 that 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.[32] 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 account[33] in order to assess whether a fair balance has been struck between private and public interests.
If the ‘estoppel’ mechanism finds no grounds for applying, then 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 inefficient[34] 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 rights.[35] 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 Alconbury case[36] 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,[37] 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,[38] 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. [39]
All 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 neighbour’s right to peaceful enjoyment of property, then the planning authorities’ discretion not to take enforcement action is greatly 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[40] ‘Article 1 of the first protocol, concerned with the protection 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 will have to strike a proportionate balance and this in turn can now reviewed by the courts.[41]
          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,[42] 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 […] for not 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 demolished.[43] 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. Criminalising unlawful 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 way.
It 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 should be reviewed.[44]
The 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 http://hudoc.echr.coe.int/

¤ Maîtrise en droit public (Paris II), D.E.A. de droit public comparé (Paris I), Research student at City University London.

[1] 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 Italian)

[2] 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/

[3] 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.

[4] 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.

[5] 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.

[6] Richard Burnett-Hall, Environmental Law, Sweet & Maxwell, London 1995, page 119-120.

[7] As also in other similar judicial systems such as France or Greece for example.

[8] The position is broadly the same is Scotland.

[9] Sections 55(1) and 57(1) of the Town and Country Planning Act 1990 (hereinafter TCPA).

[10] 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 developments.

[11] According to Richard Burnett-Hall, above n.6, paragraph 3-123.

[12] See on this point the Butterworth’s Planning Law Service, Division F, nos. 35 and 46.

[13] 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 [1997] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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).

[18] 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, 134-149.

[19] ECtHR, López Ostra v. Spain, 09/12/1994, available from the ECtHR website see above note n. 2.

[20] Ibid. at paragraph 55.

[21] 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

[22] According to section 171A(1) of the TCPA 1990, as mentioned above.

[23] 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.

[24] Timothy Corner, Planning, Environment and the European Convention on Human Rights, JPL 1998, April,  314.

[25] Case of Iatridis v. Greece, 25/03/1999, no. 31107/96.

[26] 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.

[27] ‘[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.

[28] Håkansson and Sturesson v. Sweden, 21/02/ 1990, paragraph 47.

[29] See the case of Beyeler v. Italy, 5/01/2000, paragraph 108.

[30] 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.

[31] 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).

[32] See the case of Hentrich v. France, cited above, at paragraph 56.

[33] See mutatis mutandis, Beyeler v. Italy, cited above, paragraph 110.

[34] 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.

[35] 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 http://www.scotland.gov.uk/library/nppg/nppg-cover.asp).

[36] R. (on the application of Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions, [2001] JPL 920 (HL).

[37] Neil Collar, Planning and Human Rights, W. Green & Son, 2001, at page 137 par. 8.09.

[38] Hatton and Others v. the United Kingdom, 2/10/2001, application n. 36022/97.

[39] 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.

[40] Sparkes v. Secretary of State for the Environment, Transport and the Regions [2000] 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.

[41] 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 [2001] 2 WLR 1622. Also Ben Pontin, Human Rights and Judicial Review (editorial), ELM 13 [2001] 5.

[42] R. v. Leominster DC Ex p. Pothecary [1998] JPL 335 (CA).

[43] 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.

[44] See the latest Government’s Green Paper on Planning, paragraph 5.68, above note no. 21.