Baner v Sweden: ECHR 1989

The applicant owned land with lakes which were fished by his household and employees; the public were not allowed to fish. New legislation permitted licence-free fishing by everyone. Many more people came to the beaches and fished the lakes; there was an increase in illegal fishing. No compensation was payable in these circumstances, there being no loss of previous income from the grant of licences. The Commission first considered that this legislation did not involve any expropriation, but was a control of use. Next, it recognised that where there was deprivation of property there was normally an inherent right to compensation. It continued:
‘However, in the Commission’s view such a right to compensation sets the framework in which the property may be used and does not, as a rule, contain any right to compensation. This general distinction between expropriation and regulation of use is known in many, if not all, Convention countries.
This does not exclude that the law may provide for compensation in cases where a regulation of use may have severe economic consequences to the detriment of the property owner. The Commission is not required to establish in the abstract under which circumstances Article 1 may require that compensation be paid in such cases. When assessing the proportionality of the regulation in question it will be of relevance whether compensation is available and to what extent a concrete economic loss was caused by the legislation.
The Commission further recalls that the interference with the applicant’s property right was limited to one form of fishing in his waters, namely fishing with hand-held tackle. The applicant had not before the reform derived any income from such fishing. He cannot, therefore, claim any direct loss of income from the reform. As to the allegation that the value of his property was reduced, the Commission notes that the legislation affected many fishing properties all over Sweden and it is not easy to see how a specific and concrete reduction in value could result from this general legislation. Even assuming that some theoretical loss in value could be established, the Commission cannot find that such a loss caused by general legislation must necessarily be compensated on the basis of Article 1 of Protocol No. 1.’


(1989) 60 DR 125


Human Rights

Cited by:

CitedTrailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
CitedTrailer and Marina (Leven) Ltd, Regina (ex parte) v Secretary of State for the Environment, Food and Rural Affairs and Another CA 15-Dec-2004
The claimant sought a declaration that the 1981 Act, as amended, interfered with the peaceful enjoyment of its possession, namely a stretch of canal which had been declared a Site of Special Scientific Interest, with the effect that it was unusable. . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 06 May 2022; Ref: scu.193774