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. It had come to be a habitat for wildlife, and the order prevented the claimant using the canal for leisure purposes.
Held: Where the interference was short of an expropriation, but was a substantial interference in the use of property, the court had to find a fair balance between private rights and the public interest. The court had to give appropriate deference to the decisions of the legislature. Provided the legislature thought it right to interfere with use right without compensation, a fair balance would have been struck. The Act had been amended to take away compensation rights. The Act was not inherently incompatible with property rights. It did not prevent all use and was not a disguised expropriation.
Lord Phillips Of Worth Matravers MR, Lord Justice Sedley and Lord Justice Neuberger
[2004] EWCA Civ 1580, Times 28-Dec-2004
Bailii
Wildlife and Countryside Act 1981, European Convention on Human Rights A1P1
England and Wales
Citing:
Appeal from – Trailer 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 . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Papamichalopoulos and Others v Greece ECHR 24-Jun-1993
Expropriation notices, which were eventually withdrawn, constituted neither deprivation of property nor control of use, but ‘The fact that the permits fell within the ambit of neither of the second sentence of the first paragraph nor of the second . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Allan Jacobsson v Sweden ECHR 25-Oct-1989
‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
Cited – Southern Water Authority v Nature Conservancy Council HL 9-Sep-1992
That a Water Authority was digging a ditch was not a sufficient connection with the land to make them occupiers and capable of committing an offence as occupiers. The statutory provisions were toothless for ‘it needs only a moment to see that this . .
Cited – 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 . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Cited – S v France ECHR 1990
The Commission, dealing with admissibility, pointed out that noise nuisance could be so severe as to amount to a partial expropriation where it rendered a property unsaleable or unusable, severely affecting its value. Where substantial compensation . .
Cited by:
Cited – Mott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .
Cited – Mott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
Cited – Mott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .
Lists of cited by and citing cases may be incomplete.
Land, Human Rights
Updated: 04 January 2022; Ref: scu.220353