European Property Rights and Wrongs - Diana Wallis MEP

which the land is sited, that is for the regional governments in Spain. However,
public authorities must observe the human rights of citizens, including the right
to property and the right to respect for a home. Human rights are in play when a
public authority affects the land of a citizen (a vertical application) but not when
one citizen sues another (a horizontal application). In the Spanish cases one apprehends
that the state is involved albeit indirectly by enacting the legislation
which is being used by developers against owners (indirectly horizontal applications,
like James v United Kingdom (application 8793/79, February 21st 1986).
So the Valencian legislation might potentially be challenged in the human rights
court in Strasbourg, though only after domestic Spanish proceedings based on
Spanish and regional constitutions had been unsuccessful.
In order to bring human rights into play it is necessary to establish an interference
with a convention right that was unjustified. The first stage is relatively easy,
but it is important to classify the potential infringement. The right to property is
conferred by article 1 of Protocol 1. Most commonly land use legislation will constitute
a control on the use of land, in which case it will be subject to the principle
that the state is not (at least usually) required to pay compensation for the imposition
of a control on the use of land. So a planning refusal may cost the owner a
great deal of money, but no human rights issue arises if the decision is lawful and
justified in pursuit of a legitimate public interest and is reached after following
a proper procedure. So too with a decision to impose infrastructure costs on an
owner or a decision to demolish an illegal construction; it is the same as a British
local authority deciding to make up a private road and charging the cost to the
frontagers. That is the basic position.
A number of chinks can be seen in this shield. Some decisions in Spain might
be classified as deprivations – either as a formal compulsory purchase or a de
facto deprivation of property having the same effect. If a case is recategorised as
a deprivation the normal requirement is that the public authority should pay the
market value of the interest taken. Complaints that inadequate compensation has
been offered might fall into this category, and other arguable issues are decisions
which effect a de facto deprivation without a proper procedure being followed,
procedural impropriety, delay, and the lack of an opportunity to challenge the decision
making process. Human rights challenges are often based on a discriminatory
interference (article 14) with a right to property (Protocol 1 article 1). This is possible
where analogous cases are treated differently or different cases are treated the
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