Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

5.Use

[5.09] Use is any activity which is done on land but which does not interfere with its physical characteristics.21 Change of use is a form of development for which permission is required, if the change is “material”22 judged in the context of a planning unit. Uses are grouped into classes, the main residential group being Class C3.23 Changes between use classes generally require permission.

Limitation operates to legitimate a change of use24 four years after it has occurred in the case of a change of use to use as a single dwelling, or after 10 years in the case of other breaches, including breach of an agricultural occupancy condition.25

6.Planning conditions

[5.10] Planning permissions are usually subject to conditions,26 perhaps for example stating the materials to be used for a building or its external appearance. Occupancy conditions are often imposed to make housing acceptable in a green belt or to restrict houses in rural areas to agricultural occupiers.27

7.Planning enforcement

[5.11] Unauthorised development is not itself criminal, but it leaves land vulnerable to enforcement procedures under the Planning and Compensation Act 1991.28 If the authority considers that operational development or change of use has occurred without authority, it has a discretion to issue an enforcement notice. Notices are frequently challenged. Failure to observe an enforcement notice is an offence.29

8.Special regimes

[5.12] There are numerous special planning regimes, covering conservation areas, listed buildings, historic buildings, ancient monuments and archaeological areas. Tight controls apply to trees, advertisements and caravan parks. Many rural environments attract special protection such as green belts around cities, areas of outstanding natural beauty, national parks, sites of special scientific interest and so on.

Special rules for major developments and industrial and commercial development. A rigorous new regime applies to contaminated land.30 Enterprise zones were set up

21Parkes v. SS for Environment [1978] 1 WLR 1308, 1311, Lord Denning MR.

22TCPA 1990 ss 55, 57(2)–(4), sch 4.

23SI 1987/764 sch; R(JR) Hossack v. Kettering BC [2002] EWCA Civ 886, [2002] JPEL 1206.

24TCPA 1990 s 171B.

25Newbury DC v. SS for Environment (1993) 67 P & CR 68, CA.

26TCPA 1990 ss 60, 70. These can be discovered by a local search.

27Fawcett Properties v. Buckinghamshire CC [1961] AC 636, HL; R v. Kensington & Chelsea RLBC ex p Lawrie Plantation Services [1999] 1 WLR 1415, HL.

28R Carnwath, Enforcing Planning Control (HMSO, 1989); Thrasyvoulou v. SS for Environment [1990] 2 AC 273, 292B–C, Lord Bridge; SIs 2002/2682–2686.

29TCPA 1990 s 179, as amended; R v. Wicks [1998] AC 92, HL.

30Environmental Protection Act 1990 ss 78A–78YC, inserted by Environment Act 1995 s 57; Buckinghamshire CC v. Briar [2002] EWHC 2821 (Ch), [2002] December 20th, Lawrence Collins J.

to relax the normal planning restrictions and so encourage commercial development in places such as London’s Canary Wharf.

D. HUMAN RIGHTS

1.Rights brought home

[5.13] Today the balance between public and private landowners is maintained by the European Convention on Human Rights. The Human Rights Act 1998 “brought home”31 rights from Strasbourg, the seat of the European Court of Human Rights, so that they became enforceable in the UK courts.32 It came into force on October 2nd 2000 its force being prospective only in civil matters.33 Incorporation applies exclusively to “Convention rights” already recognised by the United Kingdom,34 excluding for example any commitment to abolish imprisonment for private debt. Our domestic law is aligned with the constitutional arrangements in most continental countries.

Cases since the introduction of the Act have tended to confirm the conservative view35 of the Act in relation to property, despite one or two headline grabbing changes. A more radical potentiality remains which may result in a second coming at some future time.

2.Rights to property

[5.14] The Convention provides a substantive guarantee of property rights in article 1 of the First Protocol to the Convention.36 Three distinct but interlocking rights37 are, in order of application,38 rights to:

(1)freedom from arbitrary deprivation of possessions;

(2)freedom from unjustified controls on the use of property; and

(3)peaceful enjoyment of possessions.

None of these rights is absolute since interferences with the rights may be, and commonly are, justified in the wider public interest. The right to property is available to

31Rights Brought Home (Cm 3782, 1997).

32A stay should not be granted pending a decision of the European Court of Human Rights, since the remedy against the Government is damages for failing to observe the Convention rights: Locabail UK v. Waldorf Investment Corp (No 4) [2000] Times June 13th, Evans–Lombe J.

33JA Pye (Oxford) v. Graham [2002] UKHL 30, [2002] 3 All ER 865, [73], Lord Hope; D Beyleveld, R Kirkham & D Townend (2002) 22 LS 185. In criminal cases see: R v. Kansal [2001] UKHL 62, [2002] AC 69.

34HRA 1998 s 1, sch 1, as amended.

35A Arden & C Baker [1998] 03 Legal Action 8; J Howell [1999] Conv 287; J Alder [1999] JHL 67; R Buxton (2000) 116 LQR 48; M Davies [2000] 27 LSG 30; D Rook Property Law and Human Rights (Blackstones, 2001); D Rook [2002] Conv 316; P Halstead [2002] Conv 513; J Luba Housing and Human Rights (Jordans, 2002); Smith’s Property Law (4th ed), 16–19.

36Agreed at Paris, March 20th 1952.

37Mellacher v. Austria, 10522/83, (1990) 12 EHRR 391, 408. Cases repeat this so often that it has become a Strasbourg cliché.

38The right to peaceful enjoyment appears first in the text but the cases treat it as a residual sweeper up with relatively small content.

“every natural or legal person”,39 so that companies and building societies40 may seek protection just as much as any individual.

3.Qualifications to the convention right to property

[5.15] Private interests often have to yield to the public good to the extent that this proves necessary.41 Analytical techniques are provided by the human rights jurisprudence to determine which should prevail in ordinary cases. Article 1 of Protocol 1 is subject to three major limitations:

(1)Deprivation of possessions is permitted: “in the public interest and subject to the conditions provided for by the law and by the general principles of international law.”

(2)The right to property “shall not . . . 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.”

(3)States may enact laws “to secure the payment of taxes or other contributions or penalties.”42

Most people who reach the stage of a legal complaint have indeed been victims of an interference with a property right protected by the Convention, so the battleground is the justification for that interference.

Interferences must be lawful, that is they must be justified by some statute or case law principle. In addition any interference should seek to achieve a legitimate purpose and be necessary in a democratic society. A (wide) margin of appreciation is allowed to the state, this being an area of discretion in which the state is left to determine whether or not particular legislation is useful. Proportionality is the principle used by a court to retain a balance between the interference with private property rights as against the social problem requiring the interference: legislation must be reasonably commensurate with the problem being tackled.43

4.Other human rights to property

[5.16] Ancillary and procedural protections are also important in property law. These include the article 6 guarantee of fair trial of claims to property rights and other civil claims, the article 8 right to respect for the home and for family life, and the article 14 freedom from discrimination in the exercise of Convention rights. All of these rights are qualified by the possibility of public interest justification. These other rights appear to be restricted by the text of the Convention to humans, though states have not in practice taken this point when companies have taken cases to Strasbourg.

39Art 1 of Protocol 1.

40National and Provincial BS v. UK, 21319/93, (1998) 25 EHRR 127.

41Sporrong v. Sweden, 7151/75, (1983) 5 EHRR 35, [1], Judge Walsh.

42National and Provincial BS v. UK, 21319/93, (1998) 25 EHRR 127; Gasus Dosier und Fördertechnik v.

Netherlands, 15375/89, (1995) 20 EHRR 403.

43Mellacher v. Austria, 10522/83, (1990) 12 EHRR 391.

5.Defences

[5.17] Human rights of others are safeguarded by the principle that one person’s reliance on convention rights should not infringe any other right or freedom, with especial safeguards for freedom of expression, and for freedom of thought conscience and religion.44

E. VERTICAL AND HORIZONTAL HUMAN RIGHTS

1.Control of public landowners

[5.18] Public authorities are subject to administrative law in that decisions made when acting in a public capacity can be challenged by judicial review. In particular a decision is open to challenge if it is one that no reasonable authority acting properly could have reached.45 This could include public aspects of land ownership. A council is free to decide for itself when to sell its land without being subject to judicial review, since the council is undertaking a private function,46 but a council must act within its powers and ensure that it meets its public law obligation to get the full market value.47

2.Obligation of public authorities to respect human rights

[5.19] The 1998 Act greatly strengthens the position of individuals affected by the decisions of public bodies. It is unlawful for any public authority to act in a way which is incompatible with any Convention right,48 unless compelled to do so by primary legislation. Decisions in breach of the Convention will be open to judicial review, and hence the decision may be quashed, or damages awarded. It will also be possible for a victim to defend an action by an offending authority or to sue it directly for an act in breach of his Convention rights.49

Authorities subject to control will include the central government, executive agencies, local government, and privatised utilities, and any private person exercising a function of a public nature.50 This includes a parochial council when it imposes chancel repair liabilities,51 and drainage authorities,52 but not private bodies housing the

44HRA 1998 ss 11–13; Chassagnou v. France, 25088/94, (2000) 29 EHRR 615.

45Associated Provincial Picture Houses v. Wednesbury Corp [1948] 1 KB 223, 228, Lord Greene MR. Proportionality is now considered.

46R v. Leeds CC ex p Cobleigh [1997] COD 69; R(JR) Pepper v. Bolsover DC [2000] EGCS 107 November 10th, Keene J.

47R(JR) Structadene v. Hackney LBC [2001] 1 EGLR 15, QBD; R(JR) Lemon Land v. Hackney LBC

[2001] EWHC Admin 336, [2002] 1 EGLR 81, Lightman J; K Lanaghan [2001] 32 EG 84; J Bosworth [2001] 26 EG 158.

48HRA 1998 s 6(1).

49Ss 6–8.

50S 6(3)–(7).

51Aston Cantlow etc PCC v. Wallbank [2001] EWCA Civ 713, [2002] Ch 51.

52Marcic v. Thames Water Utilities (No 1) [2000] EWHC Techno 421, [2002] QB 929.

homeless such as a housing association53 or charitable foundation.54 The position of a local authority acting as a landlord remains open.55

3.Horizontal applications

[5.20] The Human Rights Act 1998 is used in a “horizontal” fashion when the Act is used between two private property owners, the one complaining that the other has violated his human rights in reliance on legislation or property ownership rules laid down by a public body. Two propositions seem clear: (1) horizontal effect was not intended;56 but (2) it has been the effect of the Human Rights Act 1998.57

(1) Strasbourg cases

[5.21] Of the few cases supporting horizontality,58 the clearest is James v. United Kingdom.59 A ground landlord took action against the government arguing that enfranchisement rights violated his right to his property. He could only pursue a “vertical” action against the Government in the Strasbourg court. There was jurisdiction, though the case failed on the merits. A ground landlord could argue that the enfranchisement legislation contravened the Convention. The state may be liable for enacting legislation that enables one private individual to expropriate the property of another private individual. Human rights can attack basic property principles.

(2) Human Rights Act 1998

[5.22] The 1998 Act goes beyond the Strasbourg jurisprudence because its definition of the public authorities obliged to observe Convention rights includes the House of Lords as a judicial body, the Supreme Court, all lower courts and tribunals.60 Judgments of lower courts can only be corrected by an appeal. It seems that the courts must issue judgments in accordance with the Convention ignoring inconsistent case law principles.

(3) Legislation

[5.23] Legislation which impinges on Convention rights can often be made compliant by using interpretation techniques to ensure that primary and secondary legislation is construed, if possible, so as to be compatible with the Convention.61 However, if this

53Poplar Housing and Regeneration Community Ass v. Donoghue [2001] EWCA Civ 604, [2002] QB 48.

54Heather v. Leonard Cheshire Foundation [2002] EWCA Civ 366, [2002] 2 All ER 936.

55Pemberton v. Southwark LBC [2000] 1 WLR 1672, CA.

56Lord Irvine, Hansard HL vol 583 (November 24th 1997) cols 783–785.

57M Hunt [1998] PL 423; R Buxton (2000) 116 LQR 48; HWR Wade (2000) 116 LQR 217; J Howells “The Human Rights Act 1998: the ‘Horizontal Effect’ on Land Law” ch 9 in E Cooke Modern Studies in Property Law 1 – Property 2000 (Hart, 2001); D Beyleveld & SD Pattinson (2002) 118 LQR 623.

58Hunter v. Canary Wharf [1997] AC 655, 714, Lord Cooke dissenting (human rights principles alter standing to sue in nuisance).

598795/79, (1986) 8 EHHR 123; see below [5.27].

60HRA 1998 ss 4(5), 6(3), 8(6) (Tribunals). Damages for judicial acts in good faith are limited by s 9.

61HRA 1998 s 3(1); Mendoza v. Ghaidan [2002] EWCA Civ 1533, [2002] 4 All ER 1162.

is not possible, the courts do not have power to strike down primary legislation (Acts of Parliament) but should make a declaration of incompatibility.62 This will prompt the government to change the law using a fast track procedure.63

F. DEPRIVATION OF POSSESSIONS

1.Fundamental rights to property

[5.24] Most fundamental to the three limbs of the right to property in article 1 of Protocol 1 of the European Convention is the right to freedom from deprivation:

“No one shall be deprived of his possessions . . .”.

Deprivation guards against actual loss of the property itself, the target being arbitrary confiscation.

Fundamental rights are directly in play when the state acquires the right,64 or if the state acts indirectly, as where thugs apparently supported by the Zimbabwean government forced farmers off their land.65 State liability is also attracted by legislation which enables one private landowner to expropriate another’s property,66 a limited “horizontal” effect.67

2.Ownership of “possessions”

[5.25] What is protected are “possessions”, a term which clearly includes land and personal property,68 but also intangible things like a right to receive a fair rent69 or a right of restitution.70 There are limits and overpayments by credit card at a restaurant are not possessions of the waiters even if they are intended by the diners to be a tip.71 A human rights complaint can only be brought by the victim72 of an interference, that is generally an owner whose property has been taken,73 and taken without his

consent.

3.Compensation

[5.26] If an interference is a deprivation of property, as opposed to a control on its use, compensation is generally required. In relation to straightforward deprivations,

62HRA 1998 s 4; Wilson v. First County Trust (No 2) [2001] EWCA Civ 633, [2002] QB 74.

63HRA 1998 s 10, sch 2; new Bills will require a statement of compatibility.

641194/86 (forfeiture claim inadmissible); Adam v. Czech Republic (1997) 1 BHRC 451.

65Commercial Farmers’ Union v. Minister of Lands etc (2000) 10 BHCR 1, Supreme Court of Zimbabwe.

66James v. UK, 8795/79, (1986) 8 EHHR 123; see below [5.27].

67See above [5.20ff].

68Vasilescu v. Romania¸ 27053/95, (1999) 28 EHRR 241.

69R v. SS for Environment T&R ex p Spath Holme [2000] 1 All ER 884, 905b, Lord Bingham MR in CA; reversed on appeal on other grounds [2001] 2 AC 349, HL.

70National and Provincial BS v. UK, 21319/93, (1998) 25 EHRR 127; Gasus Dosier und Fördertechnik v.

Netherlands, 15375/89, (1995) 20 EHRR 403; Matos e Silva v. Portugal, 15777/89, (1997) 24 EHRR 573.

71Nerva v. UK, 42295/98, (2002) 36 EHRR 4 at 31.

72HRA 1998 s 7(1), (3), (6); ECHR art 34; Bryan v. UK, 19178/91, (1995) 21 EHRR 342.

73Shareholders lack standing to sue for the taking of property from their company: Agrotexim v. Greece, 14807/89, (1996) 21 EHRR 250.

the key case is the Former King of Greece v. Greece.74 When a republic was declared in Greece in the 1970s, King Constantine was forced into exile and his estates were confiscated, a taking finally confirmed in 1994. The King lost his palace at Tatoi outside Athens and Mon Repos, a summer retreat on Corfu including the house in which the Duke of Edinburgh was born. The Strasbourg court ruled that the Greek government had violated the ex-King’s rights. The estates belonged to Constantine as an individual and not to the state, with only two dissenters. Given that the first declaration of Human Rights was directed against the French King Louis XVI, it seemed off for a King to be using human rights arguments, but in fact Constantine ended up with very little.75 Against a market value of the assets taken – 272m C–the court deducted the value of the tax concessions received by the Greek royal family and made an award of only 12m C. Touché! The case does suggest that in a normal case compensation needs to be at the full market value.76

4.Public interest justification

[5.27] At least some compensation has to be paid. Provided that is the case, deprivation of possessions may be justified:

“in the public interest and subject to the conditions provided for by the law and by the general principles of international law.”

States often invoke these limitations and derivative case-law principles to defend property legislation and a margin of appreciation gives each state an area of discretion in which it may determine whether particular legislation is useful. This margin is wide but the principle of proportionality requires that a fair balance must be struck between the right to property and the social needs of the community: the legislative remedy must be reasonably commensurate with the problem being tackled.77

The Leasehold Reform Act 1967 enables the owners of leasehold houses to acquire the freehold reversion at the site value well below the full market value. Its motivating philosophy was that tenants under long leases had the moral right to the bricks and mortar for which they had paid when acquiring the lease and landlords should only have the moral right to the undeveloped site. This undoubtedly involved expropriation. Was this justified in the public interest? Enfranchisement withstood a strong attack from the Duke of Westminster in James v. United Kingdom.78 James was one of the trustees of the Duke’s Grosvenor estate in Central London, consisting of 2,000 leasehold houses, the leaseholders of 80 of which sought to enfranchise in four years in the early 1980s, each with a potential windfall in the range £32,000 to £182,000. The estate stood to lose this amount. Legislation to remove social injustice could satisfy the public interest test, even if its effect was to transfer private rights from one individual to another rather than to achieve direct public ownership. Enfranchisement legislation was fair since occupying leaseholders are morally entitled to ownership,

7425701/94, (2001) 33 EHRR 21

75Former King of Greece v. Greece (No 2) [2002] November 28th.

76At [78].

77Mellacher v. Austria, 10522/83, (1989) 12 EHRR 391; Y Winisdoerffer (1998) 19 HRLJ 18.

788795/97, (1986) 8 EHHR 123; S Bright [1994] Conv 211.

landlords collectively having exploited a monopoly to create a form of tenure which was disadvantageous to tenants. Sales of long leases should be based on the value of the land itself and not the market value of the land carrying the house. The tenant should not be required to buy again what he has already bought, and “unjust enrichment” of landlords should be reversed. The Act was appropriate to this end and not disproportionate. Anomalies in the legislation require separate justification, as they tended to discriminate between different property owners,79 but the court accepted that objective reasons were available to justify the form of the English legislation.

If this overtly socialist legislation passed muster, it is difficult to see much prospect of successful human rights challenges. The Wilson government’s nationalisation of the aircraft and shipbuilding industries survived in Lithgow v. UK,80 and challenges to the compulsory purchase legislation have also failed.81

5.Deprivation by retroactivity in legislation

[5.28] One certain area for attack is retroactivity in legislation. The common law recognised the need for stability of property rights – even Lord Denning!82 Owners can now complain about any reform that removes existing rights.83 Taken to extremes this could paralyse the process of reforming and simplifying property law but an attack on retroactive taxation of building society profits failed in National & Provincial Building Society v. United Kingdom.84 In the particular case the legislation merely closed a loophole. Human rights theory should not be allowed to prevent changes needed to secure tidy development of the law.

6.Interference with peaceful enjoyment

[5.29] If property is taken from an individual and used by the state without a formal deprivation of legal title there may nevertheless be an interruption of the peaceful enjoyment of property. One case if where a public authority takes possession of land without instituting compulsory purchase procedures and without offering compensation.85 Other examples are planning blight extending over 23 years,86 failure to enforce a landlord’s right to possession,87 a long delay in settling compensation claims after expropriation,88 and refusal to respect succession rights to property.89

79Contrary to art 14.

809006/86, (1986) 8 EHRR 329.

81Lock v. SS for Environment T&R [2002] EWHC 1654, [2002] 46 EG 203; Fearon v. Irish Land Commission [1984] ECR 3677, EuCtJ (Irish cpo legislation not discriminatory under EU law).

82Hagee (London) v. AB Erikson & Larson [1976] QB 209, 215, Lord Denning MR; Phillips v. Mobil Oil Co [1989] 1 WLR 888, 893–894, Nicholls LJ; Otter v. Norman [1989] AC 129, 146, Lord Bridge.

83A 10 year transitional period was thought to avoid the need for compensation when some of the old categories of overriding interests were removed: Law Com 271 (2001), [8.82–8.89].

8421319/93, (1998) 25 EHRR 127.

85Holy Monasteries v. Greece, 13092/87, (1995) 20 EHRR 1; Papamichalopoulos v. Greece, 14556/89, (1993) 16 EHRR 440, (1996) 21 EHRR 439; Agrotexim v. Greece 14807/89 (1996) 21 EHRR 250; Iatridis v. Greece, 31107/96, (2000) 30 EHRR 97; Pialopoulos v. Greece, 37095/97, (2001) 33 EHRR 39 at 977.

86Sporrong v. Sweden, 7151/75, (1983) 5 EHRR 35.

87Immobiliare Saffi v. Italy, 22774/93, (2000) 30 EHRR 756.

88Erkner v. Austria, 9616/81, (1987) 9 EHRR 464. Piron v. France, 36436/97, (2002) 34 EHRR 14.

89Marck v. Belgium, 13092/87, (1979) 2 EHRR 330.

G. CONTROLS ON USE

1.Controls

[5.30] A state is allowed to:

“enforce such laws as it deems necessary to control the use of property in accordance with the general interest.”90

An unjustified control on the use of property is therefore an infringement of the rights of the property owner. The rule interacts91 with the prohibition on arbitrary deprivation of possessions and with the residual rule securing peaceful enjoyment of possessions.92 Any controls must be a proportionate response to the social problem requiring legislation. However, a justified control will not generally require compensation.

2. Payment of taxes

[5.31] States may also:

“secure the payment of taxes or other contributions or penalties.”

The imposition of a financial burden on land by a public authority may be seen as a form of taxation. This issue was litigated most memorably in Aston Cantlow etc PCC v. Wallbank.93 A liability to contribute £95,000 to the cost of repairing the chancel of the parish church94 of St John the Baptist, Aston Cantlow, was imposed on the owners of Glebe Farm in this Warwickshire parish. This was not only an interference (with the owners’ money rather than their house) but also one that was unjustified. The lucky Wallbanks escaped a bill for £95,000. The imposition of a burden by a public authority like the Parochial Church Council was seen as a form of taxation.95 The question was whether this particular form of taxation met the requirements of the public interest justification.96 There is clearly a general interest in securing the repair of parish churches but it was quite disproportionate to load liability on to the Wallbanks.97 It was arbitrary to impose liability on the owner of one house just because the land had formerly belonged to the church but to exempt other freehold land that did not differ in any relevant way.98 It was also held to be an unfair discrimination.99

90Protocol 1 art 1.

91Mellacher v. Austria, 10522/83, (1989) 12 EHRR 391, 408; Lithgow v. UK, 9006/86, (1986) 8 EHRR

92National and Provincial BS v. UK, 21319/93, (1998) 25 EHRR 127 (right in restitution); Gasus Dosier und Fördertechnik v. Netherlands, 15375/89, (1995) 20 EHRR 403; Matos e Silva v. Portugal, 15777/89, (1997) 24 EHRR 573.

93[2001] EWCA Civ 713, [2002] Ch 51.

94Chancel Repairs Act 1932 ; abolition was proposed by Law Com 152 (1985).

95At [40].

96At [41].

97At [43].

98At [44–50].

99At [51].

3.Public justification

[5.32] Laws are permitted to control the use of property: a state may:

“enforce such laws as it deems necessary to control the use of property in accordance with the general interest.”

States often invoke these limitations and derivative case-law principles to defend property legislation. A margin of appreciation gives each state an area of discretion in which it may determine whether particular legislation is useful. Proportionality requires a fair balance between the right to property and the social needs of the community: the legislative remedy must be reasonably commensurate with the problem being tackled.100

4.Controls on use types

[5.33] Two important controls which are usually justified in the public interest are:

planning and zoning laws;101

rent regulation and security of tenure regimes.102

Details of legislation are open to scrutiny, and in extreme cases contraventions may be found.103

5.Unjustified controls – hunting

[5.34] A second hit was scored in Chassagnou v. France.104 She farmed land just north of the Dordogne near the Chateau of Hautefort. French legislation required small farmers to allow local hunting associations to operate over their land. Owners could normally prevent others hunting over their land and the loss of this right was clearly a control on the use of the land.105 Was it justified? The scheme for compulsory pooling of hunting rights went way beyond a fair balance and was outside the wide margin of appreciation allowed to the state.

100Mellacher v. Austria, 10522/83, (1989) 12 EHRR 391; Scollo v. Italy, 19133/91, (1996) 22 EHRR 514 (Italian security of tenure regime beyond margin of appreciation); Y Winisdoerffer (1998) 19 HRLJ 18.

101Katte Klitsche v. Italy, 12539/86, (1995) 19 EHRR 368; Sporrong v. Sweden, 7151/75, (1982) 5 EHRR 35; Buckley v. UK, 20348/92, (1996) 23 EHRR 101; and many, many, others.

102Mellacher v. Austria, 10522/83, (1990) 12 EHRR 391; Spadea v. Italy, 12868/87, (1996) 21 EHRR 482; Scollo v. Italy, 19133/91, (1996) 22 EHRR 514; Immobiliare Saffi v. Italy, 22774/93, (2000) 30 EHRR 756; GL v. Italy 22671/93 (2002) 34 EHRR 41

103Scollo v. Italy, 19133/91, (1996) 22 EHRR 514.

10425088/94, (2000) 29 EHRR 615.

105At [71].