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You are here: BAILII >> Databases >> European Court of Human Rights >> LAY LAY COMPANY LIMITED v. MALTA - 30633/11 - Chamber Judgment [2013] ECHR 723 (23 July 2013)
URL: http://www.bailii.org/eu/cases/ECHR/2013/723.html
Cite as: [2013] ECHR 723
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    FOURTH SECTION

     

     

     

     

     

     

    CASE OF LAY LAY COMPANY LIMITED v. MALTA

     

    (Application no. 30633/11)

     

     

     

     

     

     

     

     

    JUDGMENT

     

    STRASBOURG

     

    23 July 2013

     

     

     

    This judgment will become final in the circumstances set out in Article 44§2 of the Convention. It may be subject to editorial revision.

     

                                           


    In the case of Lay Lay Company Limited v. Malta,

    The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

              Ineta Ziemele, President,
              Päivi Hirvelä,
              George Nicolaou,
              Ledi Bianku,
              Krzysztof Wojtyczek,
              Faris Vehabović, judges,
              Lawrence Quintano, ad hoc judge,
    and Fatoş Aracı, Deputy Section Registrar,

    Having deliberated in private on 2 July 2013,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE


  1.   The case originated in an application (no. 30633/11) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Lay Lay Company Limited (“the applicant company”), registered in Malta on 16 May 2011.


  2.   The applicant company was represented by Dr I. Refalo and Dr J. Borg, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.


  3.   The applicant company alleged that it had been denied access to court, in violation of Article 6 § 1 of the Convention, to contest the refusal of its building permit application, and that as a result its property rights under Article 1 of Protocol No. 1 to the Convention had been violated.


  4.   On 16 May 2012 the complaints under Article 6 and Article 1 of Protocol No. 1 to the Convention were communicated to the respondent Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).


  5.   Mr Vincent De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28). Accordingly, the President of the Chamber decided to appoint Mr Lawrence Quintano to sit as an ad hoc judge (Rule 29 § 1(b)).

    6. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE


  6.   The applicant company was registered in Malta on 7 June 1979. Its registered address is in Fgura, Malta.

    7. A.  The background of the case


  7.   In July 1984 A., on behalf of the applicant company, and a third party, C., purchased approximately 4,500 sq. m of land in Ghaxaq. The deed of sale referred to the land as a “field”. According to the applicant company, the land was a building site under the provisions of the Building Development Areas Act 1983 (the 1983 Act), as it had a frontage on a public road and was situated within 120 m of a built-up area.


  8.   In August 1984 an application was lodged in the name of the co-owner C. with the Works Department (to be examined by the Planning Area Permits Board (“the PAPB”), the body entrusted with assessing building applications) for permission to build several garages with upper floors (mezzanini) on the land.


  9.   On 6 September 1985 the applicant company purchased C.’s share and became the sole owner of the land. The PAPB was not informed of that change at the time.


  10.   At a meeting on 10 July 1986 the PAPB approved the application to develop the land as per the plans submitted, subject to the payment of road contribution costs. The relevant minutes read as follows:

    11. “There would be no objection to the erection of garages for private cars with overlying dwellings subject to conditions on Form TH and as per plans submitted”.

    The applicant company explained that, generally, once the PAPB had approved an application, notification would be made to the contribution section of the Works Department, which would issue a bill and send the relevant file to the cash office to await payment. Upon payment, a receipt would be issued for presentation to the contribution section, which in turn would notify the PAPB that the bill had been paid (clearance). The PAPB would then issue the relevant permit containing the conditions for development.


  11.   Subsequently the applicant company started developing the land by building on it.


  12.   On 5 May 1987 the road contribution bill was sent to C. On 15 June 1987 a final notice in respect of the bill was sent to C. No payment ensued. A minute, registered in the file, dated 30 June 1987, stated that a “permit has not been issued as applicant failed to pay the contribution bill and works are in hand”. As the bill remained unpaid, in July 1987 C. was sent a letter of warning informing him that the construction undertaken was not covered by a permit.


  13.   On 14 July 1987 the applicant company asked its architect to verify matters in relation to the permit with the PAPB. According to the architect, his queries and a request for a copy of the relevant contribution bill remained unanswered as the file concerning the application had been transferred to the Attorney General’s office in connection with the institution of criminal proceedings.


  14.   On 25 March 1988 Act X of 1998, namely the Building Permits (Temporary Provisions) Act (“the 1998 Act”) was enacted to regulate the granting of building permits. Article 10 of that Act repealed the 1983 Act, except for the provisions relating to building permits granted prior to the enactment of the new legislation. The 1988 Act introduced temporary building schemes until local plans for building were put in place by Parliament.


  15.   On 17 January 1992 the Development Planning Act (“the 1992 Act”) introduced extensive changes to the law on issuing permits, inter alia, by establishing the Planning Authority (“the PA”). Section 63 repealed those parts of the 1983 Act that were still operative. Most of the provisions of the 1992 Act entered into force on 28 October 1992 but section 63 did not enter into force until 1 December 1992.


  16.   In May 1992 the Director of the Public Works Department sent C. a reminder regarding the outstanding bill, giving him twenty-four hours to pay. Later that month, the Director of the Public Works Department asked C. to make payment by means of a judicial letter. No payment ensued.


  17.   On 26 August 1992 a fresh bill (amounting to 7,962 euros (EUR)) was issued to enable the relevant permit to be granted. The bill was again sent to C., who had originally applied for the permit. On an unspecified date C. passed the bill on to A. as the representative of the applicant company, who paid it on 14 December 1992. The contributions department issued clearance in respect of the application.


  18.   On 31 December 1992 the Development Permission (Method of Application) Regulations entered into force (see Relevant Domestic Law) by means of Legal Notice 133 of 1992.


  19.   In 1993 the PAPB ceased to exist and the PA (eventually called the Malta Environment and Planning Authority (“the MEPA”)) was set up. Its Development Control Commission (“the DCC”) was entrusted with the issuing of permits (see Relevant Domestic Law). On 26 January 1993 the applicant company’s architect submitted a “Notice for Consideration by the PA” form in accordance with the transitional arrangement for PAPB applications. The form indicated C. as the owner.


  20.   It appears from the minutes dated 18 March 1993 (in the file relating to the permit application) that following payment, the PA was reluctant to issue the permit since it had not been approved while the ex-PAPB chairman had been in office. The file was subsequently transferred from one person to another without any action being taken until 17 September 1993, after which date the file was misplaced.


  21.   On 4 August 1995 the applicant company’s architect contacted the authority in connection with the permit. The architect received a reply asking him to submit a copy of the site plan indicating the site in question, as the application could not be traced. The requested document was duly supplied and received by the authority, but no further action was taken.


  22.   In a letter dated 16 May 1996 the applicant company’s newly appointed architect asked the Chairmen of the DCC to issue the relevant permit, in respect of which clearance had been issued by the contributions department. By means of the same letter she informed the authority that the applicant company had acquired the property in its entirety and she attached the relevant documentation. Following the instructions received by the DCC personnel to the architect, to the effect that the request had been forwarded to G.C. for his perusal as necessary, on 2 August 1996 another letter was sent by the architect to the Planning Directorate for the attention of G.C. namely, the manager within the Development Control Unit (“DCU”), enquiring about the outcome of the application. In his letter dated 7 October 1996 G.C. informed the applicant company’s architect that the permit could not be issued because at the time of the payment in 1992, the bill of 1986 had fallen through. The letter further stated that:

    23. “the clearance referred to [in your letter] was subsequent to a clear decision not to accept payment six years after the billing. I trust the above information is sufficient for your guidance”.


  23.   Between 1996 and 1999 various meetings took place between the applicant company and the PA (by then called MEPA). However, the latter did not indicate whether or not it would grant the applicant company the relevant permit. Following the authorities’ failure to respond to a letter of 17 February 1999 soliciting action on the matter, on 15 June 1999 the applicant company filed a judicial protest (see below).

    24. B.  Criminal proceedings


  24.   In the meantime, in August 1987 the Public Works Department asked the Commissioner of Police to institute proceedings against the applicant company for illegal construction. Criminal proceedings started in April 1988 but were suspended in November 1998 without judgment.

    25. C.  Ordinary proceedings


  25.   On 15 June 1999 the applicant company lodged a judicial protest against the MEPA requesting that the relevant permit be issued and holding it responsible for damages resulting from the delay in issuing it.


  26.   On the same day the MEPA issued a stop notice in relation to the development of the land.


  27.   On 5 July 1999 the applicant company lodged an appeal before the Development Appeals Board (“the DAB”) against the stop notice. By a judgment of 20 August 2003 the DAB rejected the appeal, holding that the PAPB had never issued a permit and that the recommendation of the PAPB together with approval from the sanitary engineering officer and the Aesthetics Board did not equate to a permit to build. The issuance of the contribution bill before the issuance of the permit was simply an administrative practice and the payment of that bill could not be equated to, and did not automatically lead to, approval or the issuance of a permit. The DAB therefore concluded that the development to which the stop notice applied was not covered by a permit as the application submitted had been refused. No proof had been submitted that some other permit had been issued or that the applicant company had tried to rectify that position.


  28.   On 3 September 2003 the applicant company appealed to the Court of Appeal. On 24 June 2004 the appeal was dismissed, as the grounds for appeal had not been on points of law.


  29.   During the appeal proceedings it transpired that the MEPA considered the letter sent by G.C. in October 1996 as a refusal to issue the permit. That decision had, by then, become final since the time-limit for lodging an appeal of thirty days, from the date of the decision, had lapsed.

    30. D.  Constitutional redress proceedings


  30.   On 23 September 2004 the applicant company instituted constitutional redress proceedings. It complained that the authorities’ failure to issue the relevant permit, the subsequent stop notice and the way in which the permit was rejected, namely without a proper decision, which had also denied it the opportunity to contest that decision, had violated its rights under Article 6 (access to court and length of proceedings) and Article 1 of Protocol No. 1 to the Convention.


  31.   By a judgment of 29 September 2009 the Civil Court (First Hall), in its constitutional competence, rejected a plea of non-exhaustion of ordinary remedies and took cognisance of the case on the merits. It noted that the MEPA’s objection in that respect had not mentioned which remedies the applicant company had failed to exhaust. Indeed, the applicant company appeared to have availed itself of the remedies made available by the MEPA, even though it had not considered the letter of 7 October 1996 as an official refusal. It had, moreover, taken judicial action to challenge the stop notice issued against it and any other proceedings that might have been available were not adequate remedies for the purposes of the applicant company’s complaints. They therefore deserved to be examined by the tribunals of constitutional competence.


  32.   As to Article 1 of Protocol No. 1, the court considered that the applicant company possessed only the land it was developing, but could not claim to possess any permit to develop it. The applicant company was aware that it was building without a permit and had failed to request to rectify that position. The court considered that the State had the power to disallow the building of property without a permit in order to ensure that developments conformed to planning regulations that were in the public interest. A decision to demolish a building without a permit was therefore a proportionate remedial action. Moreover, it held that the payment of the road contribution bill did not entail the automatic issuance of a permit - indeed, more recently, a part of that payment was required on lodging a planning application.


  33.   As to Article 6, the court considered that the State had an obligation to provide access to courts to contest an administrative decision concerning civil rights and obligations. Nevertheless, in the applicant company’s case, the lack of a decision on whether to grant a permit did not deny it access to a court since, even before the letter of 1996 was sent, the applicant company could have brought proceedings before the ordinary tribunal contesting the MEPA’s behaviour. After receiving the letter of 1996, the applicant company had even more grounds for doing so, as it had complained that the authority issuing that letter did not have the competence to do so. It followed that the applicant company could not blame the authorities as it was the applicant company that had failed to take up such a remedy, which would have satisfied Article 6 requirements. As to the complaint that the MEPA had taken an unreasonable length of time to issue a decision on the application, the court considered that the MEPA was not a tribunal for the purposes of the Convention. It followed that no violation could ensue.


  34.   By a judgment of 25 February 2011 the Constitutional Court upheld the first-instance judgment. It reiterated that the applicant company had not been issued with a permit, so it could not claim to have a possession. Referring to the DAB’s finding of 20 August 2003, it was of the view that the permit had been refused because development work had been carried out before a permit had been granted and the contribution bill had not been paid. The PAPB’s decision of 1986 had only been a recommendation, which, moreover, required the Minister’s further approval. Payment of the road contribution did not oblige the MEPA to issue a permit, particularly given the delay in payment. Therefore, the applicant company had no legitimate expectation of ever being granted a permit.


  35.   Viewing the matter from another perspective, the court considered that the applicant company owned the land, so both the process of applying for a permit and the authorities’ failure to issue one had been an interference with the applicant company’s property rights as it constituted a control of use of such property. The requirement to apply for a permit was a measure in accordance with the law and in the public interest, with the legitimate aim of ensuring rational development while safeguarding the environment in the country. Thus, the measure was undoubtedly proportionate. Similarly, the failure to issue a permit for the reasons mentioned above was also in the public interest and pursued legitimate aims such as respect for the rule of law. The same applied to the stop and enforcement notice issued by the authority.


  36.   As to Article 6, which was applicable to the present case, the court considered that the DCU manager’s letter had been sent using the authorities’ letterhead and on behalf of the authority to the applicant company’s architect, who made no attempt to appeal against such a decision (under section 37 of the Development Planning Act); nor had any other judicial proceedings been instituted. In the court’s view, the letter of 7 October 1996 undoubtedly contained elements allowing the applicant company to understand that his permit application had been refused and therefore allowing the company to bring an appeal before the PAB and if necessary a further appeal before the Court of Appeal. Moreover, since the applicant company had complained that the letter was an abuse of the powers conferred on G.C., it could also have requested a judicial review. Nevertheless, it remained passive and inert.


  37.   On 15 March 2007, during these proceedings, the Constitutional Court rejected the applicant company’s request to submit further evidence to substantiate its discrimination complaint, since the appeal application had not made reference to any such complaint.

    38. E.  Other relevant facts


  38.   In the meantime, in 2006 the MEPA approved the South Malta Local Plan, according to which the applicant company’s property fell outside the development zone. The applicant company submitted documentation supporting its argument that the site was surrounded by developments which fell outside the new development zone but which had been approved by successive authorities.


  39.   The sum paid by the applicant company in contribution costs (approximately EUR 7,970) has not been refunded by the authorities.

    40. II.  RELEVANT DOMESTIC LAW

    A.  The 1992 Act


  40.   Section 15 of the Third Schedule of the Development Planning Act (the 1992 Act), Chapter 356 of the Laws of Malta, in so far as relevant, reads as follows:

    41. “ (1) Any person who feels aggrieved by a decision of the Authority as provided in article 15(1)(a) of this Act, may appeal to the Planning Appeals Board within thirty days from the date the decision is communicated to the person on whose application the decision was taken.

    ...

    (8) If the appellant or the Authority are dissatisfied with any point of law decided by the Board, they may appeal to the Court of Appeal (Inferior Jurisdiction) by an application filed as provided in article 15(10).”


  41.   Section 15(1)(a) of the 1992 Act reads as follows:

    42. “... the Appeals Board shall have jurisdiction to:

    (a) hear and determine all appeals made by a person aggrieved, other than an interested third party, by any decision of the Authority on any matter of development control, including the enforcement of such control;”.


  42.   The 1992 Act provided for a Development Control Commission within the PA. In so far as relevant, section 13 of the Act reads as follows:

    43.  “(2) The functions of the Commission shall be such of the functions of the Authority with respect to development control, including enforcement, as the Authority may from time to time delegate to it and require it to perform, subject to such conditions as the Authority may deem appropriate.

    (3) The decisions of the Commission including any development permission issued by it, shall be deemed to be, and shall have the same force and effect as the decisions of the Authority, except in respect of matters which the Authority expressly reserves to itself or requires to be referred to it for determination, and the expression ‘decision of the Authority’ wherever it appears in this Act, shall be construed accordingly.

    (4) The decisions of the Commission shall only be binding if they are supported by the votes of not less than four of its members; and they shall be published as soon as practicable after the meeting at which they are taken.

    (5) The meetings of the Commission shall be open to the public subject to the power of the Commission to exclude any member of the public if it deems it necessary so to do for the maintenance of order. Furthermore the participation of the public on any matter under consideration by the Commission shall only be allowed at the discretion of the Commission and, if so required by it, subject to prior arrangements.

    (6) Subject to the foregoing provisions, and to any rules that may be prescribed by the Authority, the Commission may regulate its own procedures.

    (7) The staff of the Commission shall consist of officers and employees of the Authority detailed to service the Commission; and the Authority shall further provide the Commission, out of its own resources, with such other support as the Commission may reasonably require to carry out its functions.”

    B.  Legal Notice 133 of 1992


  43.   Regulation 4 of the Development Permission (Method of Application) Regulations 1992, which came into force on 31 December 1992 by means of Legal Notice 133 of 1992, in so far as relevant, reads as follows:

    44.  “(1) Notwithstanding anything contained in regulation 3 of these regulations, the following provisions of this regulation shall apply in respect of applications for a building permit which were submitted to the Planning Area Permits Board on or before 27th November 1992 and not determined by that Board.

    (2) Where an application for a building permit was submitted as aforesaid an application to the Authority shall be sufficiently made if the applicant, or an architect and civil engineer on his behalf, gives notice to the Authority in writing that he wishes the application submitted as aforesaid to continue to be considered as an application made to the Authority, indicating the reference number of the application for a building permit, the development proposed, the location of the site, the name and address of the applicant and of the architect, and such other information as may be necessary to identify the application:

    Provided that an application for a building permit shall not be further considered by the Authority and shall be considered as withdrawn -

    (a) unless the notice given under this regulation is accompanied by the certificate required by article 32(3) of the Act made out and signed by the applicant on one of the forms printed and provided by the Authority for the purposes of an application for development permission, as the case may require;

    (b) where the building permit fee or the contribution for road formation, alignment and main sewer has not been paid by the date specified for payment on the contribution bill issued in respect of the said application or within three weeks from the date of issue, whichever is the earlier date;

    (c) if a notice as provided in this regulation is not given to the Authority on or before 1st March, 1993.”

    THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION


  44.   The applicant company complained that as a result of the authorities’ protracted and unconventional procedures in refusing the permit application, it had been denied the right of access to court to contest the failure to issue a permit, as provided in Article 6 § 1 of the Convention, which reads as follows:

    45. “1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an ... tribunal established by law.”


  45.   The Government contested that argument.

    46. A.  Admissibility


  46.   Although the Government have not contested the applicability of Article 6 § 1 to this case, the Court finds it relevant to point out the following. Where there is a dispute, Article 6 applies to proceedings concerning the granting of a building permit given its civil nature (see Ortenberg v. Austria of 25 November 1994, Series A no. 295-B, pp. 48-49, § 28) and to proceedings challenging a change of designation of land which denied the applicant a right to build, a right he had had at a particular point in time when the land had been designated as building land (see Haider v. Austria (dec.), no. 63413/00, 29 January 2004). However, Article 6 is not applicable to proceedings for a building permit if building is not allowed under the zoning plan in force (see Enzi v. Austria (dec.), no. 29268/95, 8 February 2000).


  47.   The Court notes that, in the present case, at the time of the procedures undertaken to acquire a permit (and at least before 2006), the law did not exclude the possibility of building on the applicant company’s land. It follows that, as held by the domestic courts, Article 6 applies to the instant case.


  48.   The Court notes that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

    49. B.  Merits

    1.  The parties’ submissions

    (a)  The applicant company


  49.   The applicant company complained that the letter sent on 7 October 1996 by the DCU manager did not conform to the requirements of a refusal decision, mainly because the manager had not had the authority to issue or refuse such permission. Under the 1992 Act, it was the DCC within the PA that was entrusted with the function of issuing or refusing permits (see section 13 of the Act under Relevant Domestic Law above) and the legislation did not delegate such authority to the DCU. Moreover, under the Act, an appeal had to be lodged within thirty days of the date when the decision was communicated to the applicant (see paragraph 40 above). However, the letter allegedly containing the decision was sent only to the applicant company’s architect and not to A. on behalf of the applicant company. Thus, the applicant company considered that the authority had failed to follow the statutory procedure for indicating a formal refusal. The letter was part of an ongoing exchange between the authority and the applicant company. It was evident that the decision had not been final, given the further discussions that had ensued with the authorities. In that light, the applicant company had been of the view that proceedings were still ongoing. It transpired only during subsequent proceedings that the authorities considered the letter of 7 October 1996 as a decision on the permit, by which time the deadline for lodging an appeal had expired. It followed that the applicant company had been denied the right to appeal against that “decision” before the Planning Appeals Board (“the PAB”) (see paragraph 40 above) and eventually the Court of Appeal.


  50.   In reply to the Government’s argument, the applicant company failed to see how Regulation 4 (2) (b) cited by the Government could be understood as laying down the procedure for deciding whether to grant a building permit.


  51.   As to the Government’s reliance on a number of other alleged remedies, the applicant company noted that such argumentation went against the domestic court’s findings rejecting a plea of non-exhaustion of ordinary remedies. Moreover, proceedings to complain about the alleged violation, such as constitutional proceedings or proceedings before this Court, did not amount to “access to court” for the purposes of the determination of the original claim.

    52. (b)  The Government


  52.   The Government submitted that the letter of 7 October 1996 sent to the applicant company’s architect constituted a decision, in that it made it known officially to the applicant company that it could no longer claim to avail itself of the 1984 application, which had lapsed. Although the letter did not give a detailed explanation of the law and the facts of the case, it contained enough information for the applicant company to understand that the bill issued in 1986 was considered to have lapsed owing to non-payment. The letter substantially stated the content of the proviso in Regulation 4 (2) (c) (sic) of the Development Permission (Method of Application) Regulations 1992, which specifically provided for the conditions under which applications that had been pending before the PAPB could be referred to the PA.


  53.   The Government submitted that the decision had been issued by an official of the authority and sent on the authority’s official letterhead. Moreover, the letter had been sent to the applicant company’s professional representative (the architect) following a meeting with the latter. It had stated that “the permit cannot be issued” and was in reply to a letter of 2 August 1996 in which the applicant company had requested the issuance of a permit. In such circumstances, it could not be said that the content of the decision had not been made known to the applicant company or that its content had not been comprehensible. The Government stressed that that decision had been subject to appeal to the PAB and further appeal to the Court of Appeal, but that the applicant company had failed to pursue such remedies. The Government further considered that ulterior negotiations could not interrupt time-limits for appeal and it had been for the applicant company to lodge an appeal irrespective of any on-going negotiations.


  54.   The Government also submitted that the applicant company had had proper access to a court through a plurality of remedies, irrespective of the domestic courts’ findings in relation to exhaustion, which were dependant on the way the submissions had been presented. If the applicant company felt that it had been precluded from appealing before the PAB or that such an appeal would have been futile in terms of Legal notice 133 of 1992, it could have challenged the decision by instituting judicial review proceedings of the administrative action before the ordinary courts (Article 469 A of the Code of Organisation and Civil Procedure (“the COCP”)). Given that the decision at issue was a procedural act in terms of Article 469 A (2) of the COCP, the applicant company could have pursued that avenue had it felt that the decision had been procedurally or substantively ultra vires. Furthermore, had the applicant company felt that Regulation 4 (2) (c) of the Development Permission (Method of Application) Regulations 1992 (see paragraph 43 above) had itself been ultra vires, had violated its vested rights or had been inapplicable, it could have sought to impugn that regulation by means of ordinary proceedings before the civil courts, which had in their consistent case-law over the years asserted a residual power to control the legality of the acts of the administration. The same remedy would have been available had the applicant company claimed that the permit had already been granted under the 1988 Act, as the claim would have involved the interpretation of the law. In addition, the Government noted that Article 116 of the Constitution granted to all persons who impugn a law an action before the Civil Court (First Hall), together with an appeal to the Constitutional Court. Lastly, the domestic courts had on numerous occasions held the authorities liable for the payment of damages in tort as a consequence of ultra vires acts, as accepted by the Court in Sammut and Visa Investments Ltd. v. Malta ((dec.), no 27023/03, 16 October 2007).

    55. 2.  The Court’s assessment

    (a)  General principles


  55. .  Under Article 6 § 1 of the Convention it is necessary that decisions of administrative authorities which do not themselves satisfy the requirements of that Article should be subject to subsequent control by a judicial body (see Ortenberg v. Austria, cited above, § 31, and Crişan v. Romania, no. 42930/98, § 24, 27 May 2003). The right of access to a court is an inherent aspect of the safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see Markovic and Others v. Italy [GC], no. 1398/03, § 92, ECHR 2006-XIV). At the same time, the “right to a court” is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired (see Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 34, Reports of Judgments and Decisions 1998-I, and De Geouffre de la Pradelle v. France, 16 December 1992, § 28, Series A no. 253-B).


  56. .  Rules governing the procedure and time-limits applicable to legal remedies are intended to ensure a proper administration of justice and compliance with, in particular, the principle of legal certainty (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, ECHR 2000-I). It is not for the Court to interpret procedural rules. Its role in cases such as the present is to determine whether the applicant was able to count on a coherent system that struck a fair balance between the authorities’ interests and his own and, in particular, whether he was given a clear, practical and effective opportunity to challenge an administrative act that allegedly constituted a direct interference with his rights (see Geffre v. France (dec.), no. 51307/99, ECHR 2003-I (extracts)).

    57. (b)  Application to the present case


  57. .  The Court observes that it has not been disputed that a decision on whether to issue or reject a building permit application was subject to an appeal before the PAB and a further appeal to the Court of Appeal. Thus Maltese law undoubtedly gave the applicant company the opportunity to challenge the decision refusing a permit application before a court. It therefore remains to be ascertained whether the relevant procedure, in particular in relation to the “decision” issued by the authorities, was such as to ensure that the right to a court was effective, as required by Article 6 of the Convention.


  58. .  The Court notes that, despite having been asked to do so, the Government have not submitted details of the legislation applicable at the relevant time to the decision-making process concerning the issuance or rejection of a building permit application. It is, however, clear from the submissions and legislation which the parties presented before the Court that at the relevant time such decisions fell within the competence of the DCC, and they had to be published as soon as practicable after the meeting at which they were taken. The decision could then be appealed against within thirty days from the date on which it was communicated to the person on whose application the decision was taken. It is possible that no further details about the decision-making procedure were enshrined in the legislation.

    59. The Court considers that, although decisions taken in accordance with an appropriate legislative framework ensure legal certainty and are recommendable, the Court notes that no concrete evidence has been put forward showing that the decision-making process applied in the present case was not coherent and contrasted with that usually pertaining to such requests and the relevant decisions.


  59. .  Indeed, while it appears that the law provided for such a decision to be published, the Court notes that no information in this respect has been submitted by the parties. For the rest, the Court observes that while the law (see paragraph 42 above) stated that such decisions fell within the competence of the DCC, this did not preclude another entity from communicating the DCC’s decision on its behalf. Indeed section 13(7) of the 1992 Act provided for staff to service the DCC, and the October 1996 letter was sent by the manager of the DCU to whom the DCC Chairman had forwarded the request from the applicant company’s architect. It was sent on an official letterhead and it clearly indicated that the permit could not be issued, and the reasons for that decision. The Court observes that the letter contained sufficient reasons for the applicant company to be able to contest its substance. Moreover, the letter included the phrase “I trust that the above information is sufficient for your guidance”, a clear indication on behalf of the authority that no further decision would be taken and that it was for the recipient to take any further steps deemed necessary.


  60. .  Lastly, the Court notes that while it is true that the “person on whose application the decision was taken” had to be notified of the decision, the letter was sent to the applicant’s architect in response to the latter’s request of May 1996 (see paragraph 22 above). It was therefore reasonable to conclude that given that the applicant’s architect had the authority to enquire about and solicit the issuance of a permit on behalf of her client (as clearly stated in the letter of 16 May 1996, despite the fact that it referred to A. as the client and not to the applicant company), the architect was also authorised to receive notification of a decision on the client’s behalf. In this connection the Court reiterates that Article 6 of the Convention does not provide for specific forms of service of documents. The question is whether an individual’s access to court has been denied in the circumstances of the case (see Hennings v. Germany, 16 December 1992, Series A no. 251-A, and Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004).


  61. .  In these circumstances the Court sees no reason to depart from the view taken by the Constitutional Court that there was an administrative decision that the applicant could have challenged by judicial proceedings. In the present case, the letter at issue could not, at that stage, be perceived as anything less than a decision. Therefore the applicant company was given a clear, practical and effective opportunity to challenge the administrative act at issue. Also bearing in mind that it is incumbent on the interested party to display special diligence in the defence of his interests (see Muscat v. Malta, no. 24197/10, § 59, 17 July 2012), and that in the present case the applicant company could have at least enquired as to the scope of such a letter, the Court concludes that the applicant company had at its disposal an effective legal avenue which it failed to make use of. It follows, that the applicant company has not been denied effective access to court.


  62. .  Accordingly, there has not been a violation of Article 6 § 1 of the Convention.

    63. II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE CONVENTION

    63.  The applicant company complained about the authorities’ omission to issue a valid building permit in respect of its application. It relied on Article 1 of Protocol No. 1 to the Convention, which in so far as relevant 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.”


  63.   The Government contested that argument.

    64. A.  The parties’ submissions

    1.  The applicant company’s submissions


  64.   The applicant company submitted that it had had a legitimate expectation to be issued with a permit following the PAPB’s approval and the eventual payment of the road contribution, as there had been no legal impediment to its issuance. It relied on the Court’s case-law in Pine Valley Developments Ltd and Others v. Ireland (29 November 1991, Series A no. 222). The applicant company submitted that unlike in the case of Trimeg (cited below by the Government), it had been certain that the site at issue qualified as a building site in terms of the law. Among its arguments to substantiate that claim was the fact that the building permit application had been approved by the PAPB in 1986.


  65.   The applicant company further submitted that it was inappropriate for the Government to consider that the permit had not been issued because the bills had lapsed given that it was the authorities that had requested payment of the bill in 1992. In this light, the Government’s argument regarding prescription was also ill-conceived. Moreover, the same authorities issued clearance upon payment being made by the applicant company. The sum collected was not refunded to the applicant company, as would have been the case had it not been due. Similarly, the applicant company submitted that the Government had erred in considering that payment by A. in person had rendered the settlement faulty, as the Civil Code (Articles 1148 and 1149) clearly considered that payments made by third parties were possible and acceptable. Thus, all conditions had been satisfied and the issuance of the permit was solely a formality dependant on the authorities’ actions.


  66.    The applicant company further submitted that the rejection had not been in accordance with the law as there had been no law stipulating that payment had to be made within a certain time-limit. The fact that no such legal provision was applicable at the relevant time was confirmed by a MEPA official during the domestic proceedings. Moreover, the authorities had last sent the bill in 1992, a few months before it was paid. The bill itself did not mention that failure to pay within a specified time would entail the loss of the right to obtain a permit. As to the regulations referred to by the Government, the applicant company noted that they had not been applicable when the bill had been paid (14 December 1992), since they did not enter into force until 31 December 1992, as admitted by the Government. No time-limit existed before the enactment of such legislation. It followed that the authorities’ refusal to issue a permit was entirely arbitrary, and therefore the interference suffered by the applicant company was neither in accordance with the law nor proportionate.


  67.   The applicant company reiterated that it had sought to pay the bill before 1992, but that information had not been available because the file had been misplaced. The notice for consideration of the application was sent to the PA on 26 January 1993. However, no decision was made, in line with the authority’s reluctance to process the case, as was evident from the minutes of a meeting held on 18 March 1993 (see paragraph 20 above). It was only in 1996 - four years after payment of the bill - that the authority replied to the requests sent by the applicant company’s architects in 1995 and 1996.


  68.   The applicant company further pointed out that the refusal to issue a building permit had not had the legitimate aim of controlling the use of property in the general interest, as it had been based not on planning considerations but simply on procedural requirements (which, moreover, had not been in accordance with the law, as explained above).


  69.   It was also evident that the applicant company was suffering an excessive individual burden in so far as third parties had been allowed to develop property surrounding the one at issue, and thus the control exercised by the State had not been applied equally to all.

    70. 2.  The Government’s submissions


  70.   According to the Government, the building permit at issue had never been granted, despite approval and clearance by the authorities, which were not tantamount to the issuance of a permit. Therefore the applicant company did not have a possession in the form of a legitimate expectation. The Government submitted that the fact that the applicant company owned the land did not mean that it was entitled to develop it, since development could be restricted for planning and environmental reasons. Such limitations and restrictions had to be considered as control of the use of property. The crux of the matter, however, was that the applicant company had developed the land at issue without a permit (as a result of which criminal proceedings had also been instituted).


  71.    The Government submitted that in the time that had elapsed between the bill being issued and its actual payment (five years), a Planning Authority had been set up with the function of issuing permits. Legal Notice 133 of 1992 provided for the processing of applications that had been previously lodged with the PAPB. Thus, in accordance with Regulation 4 (2) (b) of the Development Permission (Method of Application) Regulations, which entered into force on 31 December 1992, the authority could not process the application submitted by the applicant company because payment had not been made within three weeks of the issuance of the bill - no other date was specified in the payment notice. In their view, the voluntary inaction of the applicant company for more than five years indicated that the building permit application lodged in 1984 had been abandoned. Given that the applicant company was a well-established developer, it must have been aware of the requirement to pay fees. Thus, the refusal to grant the permit was made in accordance with the provisions of Legal Notice 133 of 1992.


  72.   The Government further considered that, at the time, the applicable period of prescription in respect of such dues was arguably two years and certainly not more than five years (Article 2156 (g) of the Civil Code). Thus, when payment was made the claim had become time-barred and could not be pursued. The fact that the debtor chose to pay after the prescriptive period had lapsed did not revive any alleged rights, which would have been extinguished as a result of its inaction.


  73.   The Government also submitted that the bill had been issued in the name of a third person. A. had had no connection with the PAPB or the PA, since he had not informed the authorities that he had taken over the company. In fact he did not inform the authorities until ten years later. It followed that the applicant company had no locus standi to make claims on the basis of a bill issued to C. and paid by A., “a director of the applicant company in his own name”. While it was true that a debt could be extinguished by a third party, the Government was of the view that in the context of development permissions it was paramount that the payment was effected by the owner, in order for the permit to be issued to the owner. A third party should not have paid a bill personally without informing the authorities that he or she was paying on behalf of a particular applicant, otherwise a third party might have paid a bill in respect of a permit application made by an owner who had lost interest in the development, without the knowledge of the latter.


  74.   The Government submitted that the refusal followed a change of legislation reflecting environmental concerns. The zones introduced by the 2006 Local Plans - these could have been challenged before the PAB, but the applicant company omitted to do so - were meant to conserve the rural environment.

    75. The Government submitted that when the applicant company had bought the land, it had been referred to as a “field” in the deed of sale and thus consisted of agricultural land. While it was true that it had the potential to eventually acquire the status of a building site (in the absence of fixed development zones), the land was never actually covered by building permits. Thus, this had to be classified as a regular business risk. The Government noted that the Court had not been very sympathetic towards persons who had taken development risks (see Trimeg v. Malta, (dec.), no. 64792/10, 27 September 2011). It invited the Court to decide on those lines in the present case, in which the applicant company could no longer develop the said land given that it was currently situated outside a development zone.


  75.    The Government further asked the Court not to take cognisance of the allegations of discrimination in so far as they had not been raised before the domestic courts. In conclusion they considered that the interference had been necessary to control the use of property in accordance with the general interest, namely that of an environmental nature and, in the circumstances of the present case, it had not imposed an excessive individual burden.

    76. B.  The Court’s assessment

    1.  Admissibility

    77.  The Court reiterates that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant company title to a substantive interest protected by Article 1 of Protocol No. 1 (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II, and Brosset-Triboulet and Others v. France [GC], no. 34078/02, § 65, 29 March 2010). “Possessions” can be existing possessions or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an “asset” falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it. Where that is the case, the concept of “legitimate expectation” can come into play (see Maurice v. France [GC], no. 11810/03, § 63, ECHR 2005-IX, and Kopecký v. Slovakia [GC], no. 44912/98, §§ 35 and 48-52, ECHR 2004-IX).


  76.   The Court notes that, while a permit constitutes a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see Mullai and Others v. Albania, no. 9074/07, § 99, 23 March 2010), in the present case no such permit was actually issued. Nevertheless, the Court must consider whether a legitimate expectation to obtain the relevant permit arose in the circumstances of the present case.


  77.   The Court observes that, in this respect, no reference has been made by the Government or the domestic courts to the provisions of the national law relied upon in their various assessments by which they concluded that the pre-approval of the application by the PAPB did not entail an obligation on the authority to issue a permit upon the payment of the road contribution (see, conversely, Hellborg v. Sweden, no. 47473/99, § 50, 28 February 2006, where, following a tentative approval, the authorities had an obligation to issue a building permit if an application was made within two years of the approval). Nevertheless, the applicant company has failed to satisfy the Court that the situation was otherwise, either in practice or in law. It follows that the Court has no reason to doubt the domestic court’s findings in this respect (see paragraphs 27, 32, and 34 above) and considers that the applicant company did not have a “possession” in the form of a legitimate expectation to obtain the said permit (see, conversely, Pine Valley Developments Ltd and Others, cited above, § 51, where the permission granted and duly recorded in a public register could not be reopened by the planning authority).


  78.   Thus, this aspect of the complaint is therefore incompatible ratione materiae with the provisions of the Convention and the Protocols thereto, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.


  79.   The Court further notes, that the applicant company was the co-owner and later the sole owner of the land that is the subject of the present case and which undoubtedly constitutes a possession for the purposes of the Convention. The Court reiterates that the refusal to issue a building permit must be regarded as an interference with the applicant company’s right to peaceful enjoyment of its property, as guaranteed by Article 1 of Protocol No. 1 (see, inter alia, Borg v. Malta, Commission decision, 18 October 1995; Allan Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163, § 54; and Kugler v. Austria, (dec.), no. 65631/01, 27 November 2008). It follows that Article 1 of Protocol No.1 is applicable.


  80.   The Court notes that this aspect of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

    81. 2.  Merits

    (a)  General principles


  81. .  The Court reiterates that Article 1 of Protocol No. 1 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 same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. 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 the peaceful enjoyment of property. They should therefore be construed in the light of the general principle enunciated in the first rule (see, for example, Bruncrona v. Finland, no. 41673/98, § 65, 16 November 2004). They must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 108-14, ECHR 2000-I, and J.A. PYE (Oxford) Ltd v. the United Kingdom, no. 44302/02, § 42, 15 November 2005). The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII). The Court also reiterates that in the area of land development and town planning, the Contracting States should enjoy a wide margin of appreciation in order to implement their town and country planning policies. Nevertheless, in the exercise of its power of review the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant’s right of property (see Abdilla v. Malta (dec.), no 38244/03, 3 November 2005, and J. Lautier Company Limited v. Malta (dec.) no. 37448/06, 2 December 2008).

    82. (b)  Application to the present case


  82.   The Court notes that the complaint before it is limited to the refusal to issue a permit. Thus the impugned measure in this case must be considered as a control of the use of property (see paragraph 81 above), to be considered under the third rule, i.e. under the second paragraph of Article 1 of Protocol No. 1 (see Allan Jacobsson (no. 1), cited above, § 54). The Court must therefore consider whether the authorities’ refusal to issue a building permit was a lawful measure “necessary to control the use of property in accordance with the general interest”. The task of the Court in this context is to examine the lawfulness, purpose and proportionality of the decisions taken by the domestic authorities (see, for example, Borg, cited above).


  83.   The Court notes that despite a remark by the Government to that effect (see paragraph 71 in fine, above) and a Constitutional Court finding that the permit had been rejected on the basis that illegal construction had been undertaken (see paragraph 34 above), the DCC decision gave as the reason for the refusal the failed payment of the relevant bill. The same was contended by the Government before this Court. In particular, the Government submitted that the decision to reject the permit on the basis that the deadline for paying the bill had lapsed was in accordance with the law, namely Regulation 4 of the Development Permission (Method of Application) Regulations 1992, which entered into force on 31 December 1992 by means of Legal Notice 133.


  84.   While it is true that on the date of the issuance and payment of the fresh bill the regulation had only been enacted and was not yet in force, the Court reiterates that civil legislation which has a retroactive effect is not expressly prohibited by the Convention, and in certain circumstances could be justified (see, mutatis mutandis, application no. 8531/79, Commission decision of 10 March 1981, Decisions and Reports (DR) 23, and Kechko v. Ukraine, no. 63134/00, § 27, 8 November 2005). Moreover, the Convention contains no provision ruling out the possibility of relying on facts preceding enactment of the law (see Herri Batasuna and Batasuna v. Spain, nos. 25803/04 and 25817/04, § 59, ECHR 2009, in relation to the assessment of the lawfulness of a measure under Article 11). In the present case the 1992 Act explicitly contained retroactive provisions (see, conversely, Kechko, cited above, § 27) which were both accessible and foreseeable to the applicant company, even before he actually received and paid the bill, the legislation having been enacted in January 1992 and being therefore published in the Government Gazette (see conversely, mutatis mutandis, Lykourezos v. Greece, no. 33554/03, § 55, ECHR 2006-VIII, in the context of a complaint under Article 3 of Protocol No. 1). It follows that it cannot be said that the DCC’s decision was not in accordance with the law.


  85.   The Court observes that it was only in 2006, twenty years after the lodging of the application, that the land was designated as undevelopable in view of environmental concerns. However, the Court is ready to accept that in 1996, the legitimate aim behind the rejection of the permit was to ensure coherent decision-making in accordance with the rule of law in the ambit of town and country planning, which is in the general interest.


  86.   As to the proportionality of the measure, the Court notes that there was no impediment to issuing the permit when it was originally applied for, and from the initial approvals it also appears that the prospects of such a permit being granted were good. However, the Court notes that the applicant company failed to take the steps required, in a timely manner, to safeguard its interest and conclude the matter rapidly. Most importantly, when the applicant company became the owner of the entire plot of land, it omitted to inform the authorities of this until 1996 - more than a decade later. Making the relevant changes to the application would have allowed it to receive the relevant bill first issued in 1987. While the Court accepts that in 1987 the applicant company enquired in vain as to the state of its application, it took no further action until 1992, when A. paid the bill after it had been passed on to him by C. Following payment, the applicant company did not enquire about the permit until 1995. When it enquired again in 1996, it failed to contest the rejection, opting to engage in further discussions. It undertook legal action only when faced with a stop notice for illegal construction, in 1999. The Court considers that given the applicant company’s inactivity and lack of diligence in pursuing its building permit application, it was not disproportionate for the authorities to reject the said application (see, mutatis mutandis, Bellizzi v. Malta, no. 46575/09, § 73, 21 June 2011). Neither is the Court convinced that the applicant company suffered an excessive individual burden as a result. Given the specific circumstances of the case, the fact that other persons had been allowed to build in the area at the relevant time cannot be considered of relevance.


  87.   It follows, that there has not been a violation of Article 1 of Protocol No. 1 to the Convention.

    88. III.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION


  88.   The applicant company further complained that it was being discriminated against in violation of Article 14, since surrounding and adjacent property had benefited from development permits.


  89.   The Court reiterates that according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Bezzina Wettinger and Others v. Malta, no. 15091/06, § 58, 8 April 2008).


  90.   The Court notes that although the applicant company tried to submit evidence before the domestic courts in relation to this complaint, the Constitutional Court rejected the request on 15 March 2007 since the appeal application had not made reference to any such complaint (see paragraph 37 above).


  91.   Having examined the case-file the Court finds no reason to hold otherwise. It follows that the applicant company did not put forward this complaint before the domestic authorities in accordance with the formal requirements of domestic law and it is therefore inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

    92. IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION


  92.   In so far as it transpires that the applicant company complained about the length of the proceedings, the Government submitted that Article 6 did not apply in respect of the complaint regarding the delay in granting a building permit, since the proceedings concerned the processing of an application and not a determination of a dispute before a court.


  93.   The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, inter alia, Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000 X, and Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009).


  94.   The Court observes that under domestic law, in order to acquire a permit, a person must first lodge an application with the relevant authority. The decision of that authority is therefore a necessary preliminary step for bringing the case before a tribunal. The Court reiterates that, in cases such as the one at issue, in which an administrative authority’s decision is a necessary preliminary step for bringing the case before a tribunal, the relevant period for the length of proceedings does not start running when the request is lodged but only once a “dispute” has arisen. Thus, the Court considers that, on the facts of the case, it was only following the decision of 7 October 1996 dismissing the applicant company’s request for a building permit that a “dispute” within the meaning of Article 6 § 1 could arise, (see mutatis mutandis, König, cited above, § 98; Morscher v. Austria, no. 54039/00, § 38, 5 February 2004; and Gavrielides v. Cyprus, no. 15940/02, § 38, 1 June 2006).


  95.   It follows that the initial proceedings before the relevant authority to obtain a building permit did not concern a dispute (“contestation” in the French text) for the purposes of Article 6.


  96.   Accordingly, the provision is not applicable to this part of the complaint, which is therefore incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.


  97.   Lastly, the applicant company appeared to complain, without giving any details, under Article 13 of the Convention.


  98.   The Court notes that no explanation has been given in relation to this complaint, it being mentioned solely in the statement of the object of the application and not under the statement of the alleged violations where the other complaints were argued. Thus, even assuming that the complaint is not unsubstantiated and that it refers to the Constitutional Court’s finding, it is reiterated that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006-VII). The mere fact that an applicant’s claim fails is not in itself sufficient to render the remedy ineffective (see Amann v. Switzerland, [GC], no. 27798/95, §§ 88-89, ECHR 2002-II). There is nothing to indicate that had the Constitutional Court found in favour of the applicant company, it would not have provided adequate redress (see, mutatis mutandis, Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, (merits) no. 26771/07, § 70, 5 April 2011).


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

    100. FOR THESE REASONS, THE COURT UNANIMOUSLY

    1.  Declares the complaint under Article 6 § 1 concerning access to court to contest the refusal of a building permit and the complaint under Article 1 of Protocol No. 1 concerning the interference with the applicant company’s property rights admissible and the remainder of the application inadmissible;

     

    2.  Holds that there has been no violation of Article 6 § 1 of the Convention;

     

    3.  Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention;

    Done in English, and notified in writing on 23 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

         Fatoş Aracı                                                                        Ineta Ziemele
    Deputy Registrar                                                                       President

     

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