CASE OF LAY LAY COMPANY LIMITED v. MALTA
(Application no. 30633/11)
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,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The background of the case
“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.
“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”.
B. Criminal proceedings
C. Ordinary proceedings
D. Constitutional redress proceedings
E. Other relevant facts
II. RELEVANT DOMESTIC LAW
A. The 1992 Act
“ (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).”
“... 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;”.
“(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
“(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.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“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.”
1. The parties’ submissions
(a) The applicant company
(b) The Government
2. The Court’s assessment
(a) General principles
(b) Application to the present case
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.
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.”
A. The parties’ submissions
1. The applicant company’s submissions
2. The Government’s submissions
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.
B. The Court’s assessment
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).
(a) General principles
(b) Application to the present case
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
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
Deputy Registrar President