FRIJNS v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
The applicants, Mr Petrus Josephus Christiaan Maria Frijns and Mr Chretien Henri Joseph Maria Frijns are brothers and live in Bemelen. They are Dutch nationals, retired farmers and were born in 1940 and 1942 respectively. They were represented before the Court by Mr S.A.R. Lely, a lawyer practising in Maastricht. Since 1875 the applicants’ family has owned a farmhouse with pertaining agricultural land, including a plot of 1.33 hectares situated along the Sint Antoniusbank road (hereinafter “the plot”) and used as a meadow for dairy cattle. After the death of their father in 1983, the applicants inherited and continued jointly to exploit the farm. For reasons of health and age, the applicants ceased their farming activities on 1 April 2000. Under the 1952 Outline Extension Plan (Uitbreidingsplan aanwijzende de bestemming in hoofdzaken) of the then Cadier and Keer municipality (subsequently incorporated into the Margraten municipality), the plot was designated for the construction of hotels and country houses. Each year from 1973 until 1993 the municipal council (gemeenteraad) adopted a preliminary planning decision in preparation for a (new) zoning plan (voorbereidingsbesluit bestemmingsplan) for an area comprising the plot. In accordance with section 22 of the Town and Country Planning Act (Wet op de Ruimtelijke Ordening), these preliminary planning decisions were laid open for public inspection, notice being given through the Netherlands Government Gazette (Staatscourant) and the local press. Each of these preliminary planning decisions prohibited any construction activities without a prior permit issued by the municipal executive (burgemeester en wethouders) and adjourned the issuance of a building permit by the municipal executive pending the validity of the preliminary planning decision. In the meantime, on 20 January 1977, the Limburg Provincial Executive (gedeputeerde staten) had adopted a local area development plan (streekplan) for the area of south Limburg. The area in which the plot is situated was classified as a “rural area with a highly valued landscape and/or cultural historical background”. In a subsequent local area development plan, adopted by the Limburg Provincial Executive on 19 February 1987, the plot was classified as a “rural area with the interwoven categories agriculture 1, nature 2, landscape 1, and recreation and tourism 2”. Both plans were duly laid open for public inspection. On 29 March 1994, the Margraten municipal council adopted the new zoning plan “Witte Vlekken”, which was preservation-oriented. The plot was designated for “residential purposes to be further defined in accordance with section 11 of the Town and Country Planning Act”. By decision of 25 October 1994 the Limburg Provincial Executive withheld their approval of this part of the zoning plan, finding that new residential buildings on the plot would affect the landscape in an irreparable manner. The municipal authorities as well as other appellants, including the applicants, unsuccessfully challenged this decision in administrative appeal proceedings in which the final decision was handed down by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State on 21 July 1997. On 25 November 1997 the Margraten municipal council adopted a revised version of the “Witte Vlekken” zoning plan in which the plot was designated as an “agricultural area with natural and landscape values”. On 23 June 1998 the Limburg Provincial Executive approved the revised zoning plan. The applicants’ appeal against this approval was dismissed by the Administrative Jurisdiction Division on 7 July 2000. No further appeal lay against this decision. On 27 October 2000 the applicants filed a claim under section 49 of the Town and Country Planning Act with the Margraten municipal authorities for compensation for damage in consequence of the revised zoning plan, affecting land owned by them, the burden of which they could not reasonably be expected to bear alone. The applicants estimated this damage at 3,097,000 Netherlands guilders. This claim and the applicants’ subsequent objection were rejected by the Margraten municipal council on 25 February 2003 and 4 November 2003 respectively. The applicants’ appeal against this last decision was dismissed by the Maastricht Regional Court (rechtbank) on 19 October 2004. A further appeal lodged by the applicants was rejected on 28 September 2005 by the Administrative Jurisdiction Division, which found it established that the applicants had not availed themselves of the possibility to build on the plot as rendered feasible under the 1952 zoning plan. It accepted that the applicants had incurred damage as a consequence of the new zoning plan, but it had to be determined whether this damage was to be borne, either partly or in full, by the applicants, by determining whether they could be regarded as having accepted the risk that the possibility to build on the plot would disappear. It accordingly had to be examined whether there had been any indication of such a disadvantageous change in the plot’s designation and whether – considered from the position of a rationally thinking and acting owner – the applicants should have given serious consideration to that prospect. After having noted the developments since 1973 as regards the classification and destination of the plot, the Division agreed with the municipal authorities and the Regional Court that the applicants, or their legal predecessors, should be regarded as having accepted the risk that the possibility to build on the plot would disappear and, consequently, that the damage did not justify compensation under section 49 of the Town and Country Planning Act. In so far as the applicants relied on Article 1 of Protocol No. 1, the Division held: “... the new zoning regulation does not deprive the appellants of their property; they retain the right to dispose of it freely albeit within the defined planning framework. In so far as the limitations contained in the zoning plan as to the use of the plot are to be seen as an interference with the right to undisturbed enjoyment of property, Article 1 of Protocol No. 1 leaves unimpeded the application of laws that can be regarded as necessary to control the use of property in accordance with the general interest. ... the zoning plan in force in the area concerned constitutes such a control. It further does not follow from Article 1 of Protocol No. 1 that the control of the use of property as a result of limitations laid down in the zoning plan should be compensated for if Article 49 of the Town and Country Planning Act offers no basis for this. In the instant case there has therefore been no violation of Article 1 of Protocol No.1.” No further appeal lay against this decision.