The
relevant passages of the deed of sale of 1960 read as follows:
“Title – Entry into possession:
The purchasers hereby acquire title to the property
conveyed to them under this deed, and shall enter into actual
possession thereof from today's date ...
From the date of their entry into possession they shall
pay all taxes and charges payable now or in the future on the house
hereby sold together with the land. ...
... The present sale is concluded in consideration of
the principal price of three thousand new francs ...”
Following
this purchase, and in order to acquire legal access to the house, the
applicant and his wife were granted rights of temporary occupancy of
maritime public property that were regularly renewed in 1961 (year
during which the applicant was permitted to extend the dyke and a
public right of way was granted along the seaward edge of the dyke),
1975, 1986 and 1991. The authorisation of temporary occupancy of 1986
specified that the applicant sought “the renewal of the
prefectoral decision of 17 August 1961 authorising the
construction of a dyke with a dwelling house on it ...”. The
last agreement granting them the right to occupy public property
expired on 31 December 1992. The decisions specified that “the
requested dyke will not in any way interfere with navigation rights,
on condition that it is levelled off above the highest water mark, or
with maritime coastal traffic provided that public access is
guaranteed at all times” and that “in accordance with
Article A 26 of the Code of State Property (see paragraph 40 below),
the authorities reserve the right to modify or withdraw the
authorisation should they deem it necessary, on any ground
whatsoever, without the permittee thereby acquiring any right to
claim damages or compensation in that regard. The permittee must, if
required, restore the site to its original state by demolishing the
constructions built on the public property, including those existing
on the date on which the decision was signed. Should he fail to
comply with that obligation, the authorities shall do so of their own
motion and at his expense”.
B. Administrative proceedings
By
a letter of 14 March 1993 the applicant and his wife requested the
Prefect of Morbihan to renew authorisation of their occupancy.
The
Prefect of Morbihan replied on 6 September 1993 informing the
applicant that the entry into force of the Coastal Areas
(Development, Protection and Enhancement) Act (Law no. 86-2)
(hereafter referred to as “the Coastal Areas Act”), and
in particular section 25 thereof, no longer allowed him to renew
authorisation on the previous terms and conditions. Section 25
provided that decisions regarding the use of maritime public property
had to take account of the vocation of the zones in question, which
ruled out any private use including dwelling houses. However, in
order to take account of the length of occupancy and the applicant's
sentimental attachment to the house in question, he proposed to enter
into an agreement with the applicant that would authorise limited and
strictly personal use and prohibit him from transferring or selling
the land and house and from carrying out any work on the property
other than maintenance and would include an option for the State, on
the expiry of the authorisation, to have the property restored to its
original condition or to reuse the buildings.
By
a letter dated 19 November 1993, the applicant and his wife rejected
the Prefect's offer and requested a concession to build a dyke that
would be valid as a transfer of ownership under Article L. 64 of the
Code of State Property (see paragraph 43 below).
On
9 March 1994 the Prefect of Morbihan gave a decision, based on
section 25 of the Coastal Areas Act, in which he considered that
there was no public interest justifying the concession requested. He
did, however, renew his offer to grant the applicant and his wife a
right of temporary occupancy subject to conditions.
On
5 May 1994 the applicant and his wife applied to the Rennes
Administrative Court for the Prefect's decision of 9 March 1994 to be
set aside. In support of their application, they submitted that the
refusal to grant them a concession to build a dyke was unlawful.
By
a letter of 4 July 1994 the Prefect of Morbihan served notice on the
applicant and his wife to regularise their status as unauthorised
occupants of public property. That notice was
renewed on 10 April 1995.
21. On
6 September 1995 the Public Works Department of the Morbihan
département drew up an official report recording the
administrative offence of unlawful interference with the highway and
noting the unlawful occupancy of the land by the applicant, contrary
to the provisions of Article L. 28 of the Code of State Property
(see paragraph 40 below).
On
20 December 1995 the Prefect of Morbihan lodged an application with
the Rennes Administrative Court citing the applicant and his wife as
defendants in respect of an offence of unlawful interference with the
highway as they continued to unlawfully occupy public property. He
sought an order against them to pay a fine and restore the foreshore
to its original state prior to construction of the house and to
restore the dyke on which it stood, within three months.
On
19 February 1996 the Revenue Department served notice on the
applicant to pay the sums due for the years 1995 and 1996 for
unauthorised occupancy of public property, namely, a total of
56,754 French francs (FRF).
By
two separate judgments delivered on 20 March 1997, the Rennes
Administrative Court ruled on the application lodged by the
applicants on 5 May 1994 (case no. 941506) and the
application lodged by the Prefect of Morbihan on 20 December 1995
(case no. 953517).
The
application for the Prefect's decision rejecting their request for a
permit to build a dyke to be set aside (case no. 941506) was
dismissed on the following grounds:-
“... In support of their argument that the stretch
of land on which the dwelling house stands belongs to the category of
maritime private property the applicants have exhibited in the
proceedings a decision authorising the temporary occupancy of
maritime public property dating back to 1889. However, this decision
merely takes note that the land in question has been drained and does
not certify the lawfulness thereof. Accordingly, it does not call
into question the classification of the land as public property.
In accordance with Article L. 64 of the Code of State
Property, “the State may concede, on conditions it shall
determine ... the right to build a dyke”. Whilst section 27
of the aforementioned Act of 3 January 1986 [Coastal Areas Act] has
reduced the scope of application of that Article, it does nonetheless
specify that “land draining carried out prior to the present
Act shall continue to be governed by the previous legislation”.
Accordingly, the only provisions applicable to the present case are
Article L. 64 of the aforementioned Code and the Maritime Public
Property Act of 28 November 1963, which provides that ...
“subject to any contrary provisions of deeds of concession,
land artificially removed from the action of the tide shall be
incorporated into the category of maritime public property”. In
rejecting the request on the basis of the principles and guidelines
laid down in the inter-ministerial circular of 3 January 1973
setting out the policy to be followed for the use of maritime public
property, the Prefect – when examining the applicant's
particular situation involving an application for a concession –
did not err as to the scope of the circular in question, which
neither repeals nor amends the above-mentioned legislative provisions
but is limited to applying them.
The aforementioned circular, which instructs the
authorities responsible for deciding whether or not to grant
concessions to build dykes not to transfer title to the plots of land
thus created and to accept only installations designed for collective
use, to the exclusion of private dwellings, was issued in respect of
an area in which the relevant authorities have discretionary power.
In referring to the principles laid down in the circular, the Prefect
does not appear to have interpreted the legislative provisions
inaccurately; nor did he fail to consider the specificity of the
applicant's proposal before concluding that there was no special
factor justifying an exemption from the instructions analysed above.”
The
application lodged by the Prefect of Morbihan (case no. 953517)
was granted. The court stated that “the land on which Mr and
Mrs Depalle's dwelling house stands is indeed public property”.
With regard to the offence of unlawful interference with the highway,
the court found as follows:
“... The rules governing public property
... The purpose of prosecuting someone for the
administrative offence of interference with the highway is to
preserve the integrity of public property. As can be seen from the
judgment delivered by the court today in case no. 941506, the
land on which Mr and Mrs Depalle's dwelling house was built is indeed
public property.
The administrative courts base their determination of
the substance of artificial public property on the judicial
interpretation of any private deeds that may be produced whose
examination raises a serious difficulty. In the present case the dyke
and the house are not publicly owned property, given the exclusively
private use made of them and the fact that they do not belong to a
public authority, as confirmed by the deed of sale dated 8 October
1960. Accordingly, as it is not seriously disputed that the property
in question has been appropriated for private use, it is not
necessary to adjourn the application. ...
Whether there has been unlawful interference with the
highway
Whilst Mr and Mrs Depalle have full title to the
dwelling house occupied by them and claim, accordingly, that they are
therefore not the unlawful occupants of public property, the fact
remains that the erection of a permanent structure on public property
could not be legally undertaken without either a concession to build
a dyke or another type of concession. The investigation into the
facts and, in particular, the absence of any documents evidencing
that a concession was granted show that the dwelling house in
question was illegally built on maritime public property.
Accordingly, and despite the production by the owners of undisputed
title deeds, the Prefect is justified in requesting an order against
Mr Depalle to pay a fine and restore the foreshore to its original
state prior to the construction of the house.
Penalty for the offence
... Mr Depalle is hereby ordered to pay a fine of
FRF 500.
State property proceedings
Mr Depalle is hereby ordered to restore the property to
the state it was in prior to the construction of the buildings within
three months of service of this judgment. On expiry of that
time-limit Mr Depalle shall pay a fine of FRF 100 per day's delay in
the event of failure to comply with the present judgment and the
authorities shall be authorised to enforce it at the cost and risk of
the offender ...”
On
2 July 1997 the applicant and his wife lodged an appeal against the
judgment delivered in case no. 953517. On 7 July 1997 they
appealed against the judgment delivered in case no. 941506.
In
support of their appeal against the judgment delivered in case
no. 941506, the applicant and his wife submitted that the land
in question was not public property belonging to the State. They
maintained that the land was private property belonging to the State
with the twofold effect that the usual rules governing acquisition by
adverse possession under private law were applicable to their
situation and that the administrative courts did not have
jurisdiction to decide the dispute.
By
a judgment of 8 December 1999 the Nantes Administrative Court decided
to join the two sets of proceedings on the ground that they were
connected and to dismiss the applicant and his wife's appeals on the
following grounds:
“With regard to the application ... concerning the
offence of unlawful interference with the highway:
Regarding the State property proceedings
Firstly, it is not disputed that the land on which the
dyke on which the house occupied by Mr and Mrs Depalle was built was
entirely covered by water, independently of any exceptional
meteorological circumstances, prior to the draining works undertaken
in order to build the dyke. It has not been established, or
even alleged by the applicants moreover, that the undrained portion
of this land had ever been removed from the action of the tide. The
investigation shows, moreover, that the dyke is the result of land
draining carried out prior to the entry into force of the
aforementioned Act of 28 November 1963 ... and that, notwithstanding
the various authorisations of temporary occupancy granted by the
authorities, as this was not done in the manner prescribed for
concessions for the construction of a dyke it has not had the effect
of bringing this part of the land thus removed from the action of the
tide outside the category of maritime public property. In accordance
with the principles of inalienability and imprescriptibility of
public property, the submissions by Mr and Mrs Depalle to the effect
that the house was built legally and its occupancy accepted by the
authorities for a very long time and tolerated even after expiry of
the last authorisation to occupy it do not alter the fact that the
property falls within the category of maritime public property.
Secondly, as has been said, the last decision in favour
of Mr and Mrs Depalle authorising temporary occupancy of the maritime
public property expired on 31 December 1992. In the absence,
since that date, of a lawful title of occupancy, the Prefect of
Morbihan is justified in requesting an order against the occupants to
restore the site – if they have not already done so – to
its original state prior to construction of the house on
maritime public property. In disputing that obligation, the
applicants cannot properly rely on the long period of occupancy of
the premises or on the fact that the authorities have tolerated the
continuation of that occupancy since 31 December 1992 and
proposed draft occupancy agreements in order to regularise the
situation, which, moreover, they have not taken up. ...
Fifthly, [the obligation to restore the site to its
original state] does not constitute a measure prohibited by the
requirement of Article 1 of Protocol No. 1 that no one shall be
deprived of his possessions except in the public interest.”
The application regarding the refusal to grant a
concession to build a dyke
“... secondly, as section 27 of the
above-mentioned Act of 3 January 1986 provides that draining works
carried out prior to enactment of that Act shall continue to be
governed by the previous legislation, the provisions codified under
Article L. 64 of the Code of State Property according to which “the
State may concede, on conditions it shall determine ... the right to
build a dyke ...” are applicable.
The Prefect of Morbihan based his decision not to grant
Mr and Mrs Depalle the requested concession to build a dyke on the
guidelines set out in the circular of 3 January 1973 issued by
the Minister for Economic Affairs and the Minister for Regional
Development on the use of public property other than commercial or
fishing ports. He did not discern any general-interest ground in
favour of granting the applicants' request.
By instructing the authorities responsible for granting
concessions to build a dyke not to allow any plot of land whatsoever
falling into the category of public property to be reclassified as
private property with a view to transferring full title thereto, the
ministers signatory to the circular of 3 January 1973 did not adopt
any legal rules amending or supplementing the above-mentioned
provisions of Article L. 64 of the Code of State Property but
confined themselves to applying them. Accordingly, as stated above,
the plot of land in question is State-owned public property. There is
no evidence in the case that the Prefect, before reaching his
decision, either failed to examine the particular circumstances of Mr
and Mrs Depalle's request or made a manifest error of assessment in
concluding that there was no special feature or general-interest
consideration in the case justifying an exemption from the
above-mentioned rules.”
On 21
February 2000 the applicant lodged an appeal on points of law against
the judgment of 8 December 1999. The Government Commissioner
pointed out, in the same submissions as those made in a similar case,
that the value in today's terms of the purchase price of the house
was 1,067,143 euros (EUR). He
continued as follows:
“.... However, the acquisition of rights in rem
is not permitted under the Law of 25 July 1994 on State-owned
Natural Public Property ... nor were these acquired before that Law
was passed ... The appellants have not acquired any property rights
over their houses; nor have they acquired rights in rem over
public property as a result of the successive sales. Given the
precarious situation of the buildings, the market value could not be
established without taking account of that essential fact and it is
to be hoped that the applicants were duly informed of the position
when the purchase deeds were drawn up ...” Lastly, and
despite the fact that we are not especially enthusiastic about the
outcome of this case, we have no alternative but to dismiss the
appellants' pleadings. ... They probably committed a tactical error
in refusing the Prefect's reiterated offer. Even if they were not
exactly delighted by the prospect, it was at least preferable to a
straightforward demolition order which will have to be judicially
enforced at their expense. All hope is perhaps not lost of renewing
contact with the authorities with a view to finding what might be a
less drastic solution.
There may
be a case for suing the State in tort for allowing occupants of
public property to nurture for almost a century the hope that they
would not be ruthlessly compelled to demolish their property. It
should be pointed out that the prospects of success of such an action
are fairly slim, however, given the legitimate protection enjoyed by
public property. In any event, it is clear that if the public
authority were to be found liable, the offenders would bear a
considerable portion of liability too.”
By
a judgment delivered on 6 March 2002 the Conseil d'Etat
dismissed the applicant's appeal. It held that he could not rely on
any right in rem over the land in question or over the
buildings that had been erected on it and that the obligation to
restore the land to its original state without any prior compensation
was therefore not a measure prohibited by Article 1 of Protocol
No. 1. It also held that the applicant could not rely on the
fact that the authorities had tolerated the occupancy of the property
in support of his submission that he should be allowed to restore the
site to the state it had been in at the time of acquisition of the
house.
Following
a fire in 2005 the applicant applied for a building permit for
identical refurbishment of the house. By a decision of 5 September
2005, he was issued with a building permit following a favourable
opinion given by an architect from the architectes des bâtiments
de France under the Coastal Areas Act. The permit was
subsequently revoked, however, at the request of the Prefect lodged
with the mayor of Arradon, on the ground that it was illegal because
it had been issued in contravention of the rules of inalienability
and imprescriptibility of public property.
In
2007 and 2008 the Department of Revenue sent the applicant a reminder
to pay the charges for the years 2006 and 2007 in the sum of
EUR 5,518 and EUR 5,794 respectively, plus property tax.
The
applicant produced a valuation of his house drawn up by an estate
agent's office in November 2008: “a dwelling house ... situated
on a plot of land measuring 850 m2.
... Having regard to the geographical situation of the property, the
condition of the building, the surface area, its location on maritime
public property and the local property market, and subject to the
owners' ability to produce a concession agreement in respect of
maritime public property, this property is worth between
EUR 1,150,000 and 1,200,000”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Maritime Public Property and management thereof
1. The protection of maritime public property
The
idea that the foreshore is “common property”, that is,
cannot be appropriated for private use and is managed by the public
authorities, dates back to Roman times (Institutiones Justiniani,
Book II, Title I De rerum divisione), when even then a
permit was necessary in order to build on the seashore. Colbert's
Ordinance of the Marine of August 1681 codified the principle and up
until recently was still the legal basis for the State's management
of maritime public property. In addition to defining what constituted
the “seashore and foreshore”, it laid down the
applicable rules: “No one shall build on the foreshore,
set stakes in the ground or erect any construction that may interfere
with navigation, on pain of demolition of the constructions,
confiscation of the materials and discretionary fines”. At the
time of the Revolution, the idea developed that maritime public
property was governed by the Government in the interest of the
nation, and not merely as part of the heritage that used to belong to
the Crown and now belongs to the State. The management of maritime
public property is still largely guided by this principle today. Over
and above the idea of State ownership of such property, the
conservation and management of it are more a matter of implementation
of a policy regarding its use than the exercise of the owner's
“civil” rights. The prefect has a major role in the
protection of maritime public property. He is the authority who,
generally, governs the use of the property at local level, decides
whether or not to allow private occupancy and protects the integrity
of the property by prosecuting offenders (source: www.mer.gouv.fr,
consulted on 3 February 2010).
Colbert's
Ordinance of the Marine was definitively repealed in 2006. Since 1
July 2006 the General Code of Property owned by Public Bodies (Code
general de la propriété des personnes publiques –
“the CGPPP”) has replaced the Code of State Property
(dating from 1957). It restructures the law governing State-owned
land and public bodies and combines the rules governing maritime
public property into a whole, including provisions relating to the
environment in particular.
2. Substance of natural maritime public property
Maritime
public property, determined on the basis of natural phenomena, lies
between the highest point of the shore, that is, up to the high tide
mark under normal meteorological conditions (CE Ass, Kreitmann,
12 October 1973) and the boundary of the territorial waters, seaward.
Under Article L. 2111-4 of the CGPPP, “State natural
maritime public property shall comprise:
1. The seabed and marine substrata between
the external boundary of the territorial waters and, on land, the
foreshore.
The foreshore comprises the whole area covered (and
uncovered) by the sea, up to the high tide mark under normal
meteorological conditions;
2. The beds and sub-strata of salt pans
communicating directly, naturally and permanently with the sea;
3. Land naturally reclaimed from the sea:
a) which was part of the State's private
property at 1 December 1963, subject to third-party rights;
b) which has been constituted since 1
December 1963.
...
5. Land reserved for public-interest
maritime, seaside or tourist needs which has been purchased by the
State.
'Land artificially removed from the action of the tide
shall remain in the category of natural maritime public property
unless otherwise stipulated in legally concluded and lawfully
executed deeds of concession transferring ownership'.”
3. Protection of maritime public property
a) Principle of inalienability
The
principle of inalienability of public land, which was established in
the case-law and then incorporated into the Code of State Property
(Article L. 52) and the CGPPP (Article L. 3111-1), is
inextricably linked to the notion of public land. The basis of this
principle is the designation of land for public use. As long as it
remains thus designated, and no express decision has been taken
reclassifying particular public land as private property, no transfer
of land can be authorised. It is a means of preventing public land
from being acquired by prescription or adverse possession under
private law, hence the principle of imprescriptibility that is very
often associated with the principle of inalienability. Accordingly,
in its Cazeaux judgment, on the subject of plots of land
situated close to the seashore in the Arcachon Basin the Conseil
d'Etat found that “whilst the public authorities have
authorised various building works on this land and on several
occasions waived their right to apply the rules governing public land
..., neither the founders of the société
du domaine des prés salés nor the company
itself have been able to acquire any property right over the land,
which, being part of public land, was inalienable and
imprescriptible”.
The
Constitutional Council has stated that inalienability is limited to
precluding the transfer of public property that has not first been
reclassified as private property (CC, no. 86-217 DC of 18 September
1986, Freedom of communication). It has not, however, recognised that
the principle of inalienability has any constitutional status (CC,
dec. no. 94-346 of 21 July 1994, Rights in rem over public
property). The Conseil d'Etat has recently reiterated that
“where property belonging to a public authority has been
incorporated into the category of public land by virtue of a decision
classifying it thus, it shall remain public land unless a decision is
given expressly reclassifying it as private property”.
Accordingly, it has held that the question whether or not short-stay
factories fell into the category of public property was not affected
by the fact “that these short-stay factories were intended to
be rented or assigned to the occupants or that the occupancy leases
granted were private-law contracts” (CE 26 March 2008,
Société Lucofer).
The
effect of the principle of inalienability is that any transfer of
public land that has not been “reclassified” is null and
void, so third-party purchasers have a duty to return the land even
if they have purchased it in good faith. Moreover, the fact that
public land is inalienable means – in theory – that no
rights in rem can be established over it. However, the
legislature has departed from this principle by passing two Acts, one
of 5 January 1988 which creates long administrative leases, and
the other of 25 July 1994 on the constitution of rights in
rem over public land, thus making it possible to grant private
rights in rem to occupants of maritime public property. The
Act of 5 January 1988 concerns only public land belonging to local
and regional authorities or groups thereof. The Act of 25 July 1994
relates to artificial maritime property and immovable constructions
and installations built for the purposes of an authorised activity
(Article L. 34-1 of the Code of State Property and Article L. 2122-6
of the CGPPP). In its above-mentioned decision of 21 July 1994, the
Constitutional Council held that granting rights in rem in
this way was compatible with the Constitution as public services were
maintained and public property protected under the 1994 Act. However,
it declared the provision allowing the renewal of authorisation
beyond seventy years unconstitutional on the ground that it could
potentially render ineffective the public authority's right to the
automatic return, free of charge, of any constructions and therefore
undermine the “protection due to public property”.
The
last consequence of the principle of inalienability is that property
belonging to public authorities cannot be seized (Article L. 2311-1
of the CGPPP). This consequence has been attenuated by a decision of
the Conseil d'Etat in a case which subsequently came before
the Court (Société de Gestion Du Port de
Campoloro et Société
fermière de Campoloro v. France,
no. 57516/00, 26 September 2006).
b) Conservation policy
Apart
from public easements intended to protect public property from the
encroachment of private properties, such as a three-metre wide right
of way along the coast over properties adjoining maritime public
property, created by an Act of 31 December 1976 reforming town
and country planning, the land conservation policy guarantees the
protection of the physical integrity of maritime public property and
compliance with its designated use. Offenders are prosecuted for
unlawful interference with the highway on grounds of infringement of
the land conservation policy. An interference of this kind is liable
to a criminal fine imposed by the administrative courts and the
offender is required to restore the site to its original state. The
relevant provisions on unlawful interference with maritime public
property no longer refer essentially to navigation but take account
of the protection of coastal areas for their own sake (Articles
L. 2132-2 and L. 2132-3 of the CGPPP).
39. According
to the Conseil d'Etat,
conservation agencies have a duty to
prosecute offenders (CE Ministre de
l'équipement v. Association “des amis des chemins de
ronde”, 23 February 1979).
Regarding a plot of land incorporated into maritime public
property at Verghia beach (southern Corsica), the Conseil d'Etat
decided that “the fact that M.A. produced title deeds to the
property in question and had been authorised to build on the land
under the regional planning legislation, as distinct from the
legislation governing maritime public property, does not mean that
the offence of unlawful interference with the highway has not been
made out and, in any event, cannot preclude prosecution by the
Prefect ...” (CE, no. 292956, 4 February 2008). With
regard to repairing damage caused to public property, the actual
attitude adopted by the authorities prior to bringing proceedings for
unlawful interference with the highway has been deemed to give rise
to rights in favour of the offender, including the right not to
assume personal responsibility for restoring the site to its original
state (CE, Koeberlin, 21 November 1969).
4. Use of maritime public property
The
use of maritime public property may be collective or private.
Collective use which allows all citizens to benefit from public
property (navigation on watercourses, beaches) is freely exercisable,
equally available to all and free of charge. However, the principle
that use is free of charge has not been expressly incorporated into
the CGPPP because it is subject to numerous exceptions.
Private
occupancy must be compatible or in conformity with the designated use
of the public property. Unlike collective use, it is subject to
authorisation, issued personally, and a charge and is
of a precarious nature.
Article
L. 28 of the Code of State Property (Article L. 2122-1 of the CGPPP)
provided that
“Subject to authorisation being issued by the
competent authority, no one may occupy any national public property
or make use thereof over and above the right of use vested in
everyone.
The Property Department shall record any infringement of
the provisions of the preceding paragraph with a view to instituting
proceedings against illegal occupants, recovering compensation for
charges in respect of which the Treasury Department has been
defrauded, without prejudice to the institution of proceedings for
unlawful interference with the highway.” [Article A 26
specified that authorisation was revocable without compensation].
According
to the Conseil d'Etat, “whilst the authorities may, as
part of their management powers, authorise – provisionally and
on the conditions provided for by the rules in force – private
occupancy of the said land, that authorisation cannot legally be
granted unless, having regard to the requirements of the general
interest, it is compatible with the designated use of the land that
the public are normally entitled to exercise, and with the obligation
incumbent on the authorities to conserve public land” (CE,
Commune de Saint Brévin les Pins, 3 May
1963).
The
precariousness of these authorisations derives from the principle of
inalienability, according to which the protection – and
accordingly the disposal – of public land is vested in the
authorities. According to the case-law, “any authorisation to
occupy public land is precarious and revocable. Consequently, the
fact – assuming it is made out – that, prior to adoption
of the decision being challenged, I. had been granted authorisation
to occupy the part of common public property ... does not affect the
lawfulness of the mayor's decision requesting him to demolish the
buildings he had erected and restore the public land to its original
state ...” (CE, Isas, 29 March 2000). It also states
very clearly that those to whom authorisation has been granted have
not thereby “acquired rights” to renewal of the
authorisation (CE, Helie, 14 October 1991).
The
conditions of occupation of public property are determined either in
unilateral concessions granted by the authorities (of the type
referred to above in Article L. 28 of the Code of State Property) or
in contracts signed with the occupant. The latter are called
concessions to occupy public land, which – on maritime public
property – may be a beach concession or a concession to build a
dyke. By means of this concession, the State authorises the
concessionaire to carry out works on the foreshore by which land is
removed from the action of the tide. In respect of natural maritime
public property an arrangement was established in 1807, traditionally
called a concession to build a dyke and by which ownership was
transferred (former Article L. 64 of the Code of State
Property): the concessionaire was authorised to drain land, which,
once removed from the action of the tide, no longer fell within the
definition of natural maritime public property and could therefore be
reclassified as private property and transferred by the State. That
arrangement, which was originally used to build agricultural polders,
has more recently been used for property developments in the form of
marinas, reclaimed from the sea. Following a reaction to what was
perceived as a privatisation of the shore, a circular was issued in
1973 prohibiting such arrangements – a prohibition later
confirmed by the Coastal Areas Act, which imposes a broader
prohibition on any interference with the natural state of the shore.
It is now no longer possible to build marinas or polders by means of
concessions to build dykes by which ownership is transferred. This
arrangement can now apply only to past draining works and is the sole
means of legalising these (source: www.mer.gouv.fr,
consulted on 3 February 2010).
B. Law no. 86-2 of 3 January 1986, known as the “Coastal
Areas Act”, on the Development, Protection and Enhancement of
Coastal Areas
Up
until 1986 maritime public property was protected by the rules
governing the highways. The Coastal Areas Act introduced new rules
for the protection of natural public land (source: www.mer.gouv.fr).
As
early as the 1960s enthusiasm for seaside holidays brought about an
increase in the number of tourists and thus in the number of
buildings on the seashore ... . Awareness of the economic importance
of the seashore and of the degree to which it is coveted made it
necessary to introduce a rule of overriding legal force that would
arbitrate between the many uses of coastal areas. It is in this
spirit that the Coastal Areas Act of 3 January 1986 (consolidated on
7 August 2007) was unanimously passed by Parliament. Section 1
of the Act provides that coastal areas are “geographical
entities which call for a specific policy of development, protection
and enhancement”. The general principles of that Act consist in
preserving rare and fragile areas, managing spatial planning and
tourist development economically and, lastly, making the shore –
like the beach – more widely accessible to the public and
giving priority in coastal areas to marine-related activities.
It
is in the planning sphere that the principles established are the
best known and have given rise to the most litigation. Planning
permission for further development must be granted with regard to
continuation of existing constructions or new hamlets. It is
forbidden to build roads on the shore and through roads cannot be
built closer than 2,000 metres from the shore. In order to
preserve natural sites the Act imposes a “no building”
rule within a 100-metre band – outside urban centres –
from the shore, and restricts development in areas near the shore.
Lastly, sites of outstanding interest or characteristic of the shore
must be preserved and only small-scale development can be allowed.
The
Act has laid down rules for managing maritime public property which
include a mandatory public inquiry prior to any substantive change of
use, clarifying the procedures for delimiting the foreshore,
prohibiting – other than in exceptional circumstances –
interference with the natural state of the seashore and establishing
specific rules for collective mooring. Lastly, it has established the
principles of unobstructed and free public use of the beaches and
facilitated public access to the sea (see Article 321-9 of the
Environment Code and Article L. 2124-4 of the CGPPP:
“Pedestrians shall have free access to beaches ... . Beaches
are fundamentally reserved for the unobstructed and free use of the
public.”
Section
25 of the Act, now Article L. 2124-1 of the CGPPP, has given rise to
a reform of the rules governing the occupation of maritime public
property. It provides:
“Decisions regarding the use of maritime public
property shall take account of the vocation of the zones in question
and those of the neighbouring terrestrial areas, as well as of the
requirements of conservation of coastal sites and landscapes and
biological resources. Accordingly, they shall be coordinated with,
inter alia, decisions concerning neighbouring public land.
Subject to specific provisions regarding national
defence and the requirements of maritime safety, any substantive
change of use of zones of maritime public property shall first be the
subject of a public inquiry ...”
Section
27 of the Act, now Article L. 2124-2 of the CGPPP, lays down the
principle that there shall be no interference with the natural state
of the shore:
“Subject to sea defence operations being carried
out and the construction of structures and installations required for
maritime safety, national defence, sea fishing, salt works and marine
cultures, the natural state of the foreshore, outside port and
industrial port areas, may not be damaged, especially by dyke
construction, drainage, rock filling or embankment forming, except
for structures or installations related to providing a public service
or carrying out construction work for which the seaside location is
essential for topographical or technical reasons that have been
declared of public interest.
However, land draining carried out prior to the present
Act shall continue to be governed by the previous legislation.”
The
following is an extract from the section entitled “Matching
facts with the theory” of a report on the conditions of
application of the Coastal Areas Act, drawn up by the Highways
Authority and sent to the Minister for Infrastructure, Housing and
Transport in July 2000:
“... there is an acute sense of unfairness when an
application for planning permission is turned down in respect of a
site where the presence of buildings would appear to suggest that at
other times the authorities have been less particular. ...
The right to enjoy “for life” but not to
transfer a dwelling house built on maritime public property, as
recognised in an agreement signed with the Prefect, the right granted
to a married couple until their death to camp or park their caravan
in a zone in which camping was now illegal, together with an
agreement expressly stipulating that the right could not be
inherited, illustrate the creativity shown by the authorities in this
regard in Charente-Maritime and the Morbihan. ...
All sorts of liberties are increasingly being taken in
various degrees of good faith. ... Should we simply ignore the
development of a black market in permits to occupy public property
... Should we not be attempting to establish liability on the part of
public officials who in the course of their administrative duties
have knowingly contributed to creating or exacerbating an illegal
situation? ...”
A
report entitled “Assessment of the Coastal Areas Act and
measures in favour of coastal areas”, prepared by the
Government for Parliament (September 2007), contains a part devoted
to opening coastal areas to pedestrians which is worded as follows:
“The purpose of the Coastal Areas Act is to
maintain or develop tourism in coastal areas. Sections 3 to 8 of the
Act, in particular, lay down the conditions in which the public may
visit natural sites, the seashore and the corresponding facilities.
The provision of coastal paths goes some way towards giving effect to
these legislative provisions. ... The public can continue to walk
along the coast by virtue of an easement over private properties and
a right of way over public land that may belong to the State
(maritime public property), the Coastal Protection Agency or local
and regional authorities ... .
Making a pathway often requires an on-site study of the
terrain in order to determine whether the coastal area in question
can be opened to pedestrians without harming the fauna, the flora or
the stability of the soil. If the land is considered to be accessible
without any risk to the environment, regard will have to be had to
where the path is routed, particularly across private property, it
being observed that the statutory route (three metres in width
running along the boundary of maritime public property) is not always
the most appropriate solution. If the statutory route across private
properties has been modified, a public inquiry must be carried out.
...”
C. Comparative law
The
Court examined the situation in sixteen coastal member States. Only
four States (Albania, Bosnia-Herzegovina, the United Kingdom and
Sweden) do not recognise the existence of maritime public property
exclusive of any private ownership rights. In the other twelve States
(Germany, Croatia, Spain, Greece,
Ireland, Italy, Malta, Monaco, Montenegro, the Netherlands, Slovenia
and Turkey), maritime public property belongs either to the State or
to other public bodies and is inalienable on that basis. In all these
States maritime public property can nevertheless be designated for
private use on the basis of fixed-term concessions. And in all these
States illegal use exposes the offender to administrative or even
criminal penalties. In particular, the illegal construction of
immovable property can result in the offender being ordered to
demolish the building concerned at his or her own expense and without
compensation. This type of measure also exists in Sweden, where the
private right of ownership of land on the seashore is recognised by
law but the land is subject to relatively strict easements which
prohibit the construction of new buildings and guarantee public
access to the sea.
In
Croatia, as in Spain, the owners of buildings legally built and
acquired before the entry into force of the “Maritime Property
Act” (2006) in the case of the former and the Coastal Areas Act
in the case of the latter (1988), and designed for use as a dwelling,
could obtain a concession of these buildings, without any obligation
to pay a charge on the sole condition that they apply for the
concession within one year of the entry into force of the Act. In
Spain properties built before the Act came into force without a
permit or concession as required by the previous legislation will be
demolished if they cannot be legalised on public-interest grounds.
Any building that was authorised before the Act came into force but
is now illegal will be demolished on the expiry of the concession if
it is located on land falling within the category of maritime public
property. In Turkey, according to the case-law of the Court of
Cassation (judgment of 10 October 2007), which refers to the
judgment in Doğrusöz and Aslan v Turkey
(no. 1262/02, 30 May 2006), if
the annulment of a property deed in respect of property located
inside the delineation of the foreshore is compatible with the
domestic legislation, the interested party can apply to the courts
for compensation for his or her pecuniary loss.
D. Council of Europe texts
The
following relevant texts can be cited: Recommendation No. R (97)
9 of the Committee of Ministers on a policy for the development
of sustainable environment-friendly tourism in coastal areas adopted
on 2 June 1997, and the appendix thereto, the
decision of the Committee of Ministers taken at its 678th
meeting (8-9 September 1999) at which the Ministers' Deputies take
note of the Model Law on sustainable management of coastal zones (see
Article 40 on Public maritime domain and Article 45 on Pedestrian
access to beaches and coasts); and the European Code of Conduct for
Coastal Zones and agree to transmit them to their respective
Governments.
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
The
applicant alleged that his right of property guaranteed by Article 1
of Protocol No. 1 was infringed as a result of the French
authorities' refusal to authorise him to continue occupying the
maritime public land on which stands a house he has owned since 1960
and as a result of the order to demolish the house. Article 1 of
Protocol No. 1 provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, 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 ...”
A. Applicability: existence of a “possession”
1. The parties' submissions
The
applicant
56. The
applicant reiterated the autonomous nature of the concept of
“possessions” (Öneryıldız v. Turkey
[GC], no. 48939/99, § 95-96, ECHR 2004-XII). In his
submission, the rule that maritime public property was inalienable
did not mean that in the present case the house was res nullius
and did not fit into any legal category. The house had
been built more than a hundred years ago and he had not been told
that it had been built illegally on public land when he had purchased
it in 1960. Having been kept in the dark for a long time about the
possible demolition of his house, the applicant referred to the
decades spent peacefully in a strong social and family environment.
He pointed out that the house was liable to taxes and duties. The
State had therefore de facto recognised a proprietary
interest attaching directly to the house in question and to the
movable property in it.
The
applicant submitted, further, that when the Prefect had written to
him in 1993 proposing to extend authorisation just for his lifetime,
he had referred to the possibility of “reusing the buildings”,
thus acknowledging the existence of a construction and therefore of a
“possession”. A house could not change status according
to whether the State refused to renew authorisation and ordered
demolition or refused to renew authorisation with a view to
benefiting from ownership of the property, which, in such a case,
would be full ownership. By obliging a person who had been authorised
to occupy land to demolish, at his own expense, a house in which the
same family had been living for thirty-five years, regardless of the
fact that it had been acquired in good faith following a sale, the
State failed to comply with the duty incumbent on it to respect
“possessions”.
b) The
Government
As
at the admissibility stage, the Government disputed the existence of
a “possession” within the meaning of Article 1 of
Protocol No. 1 on account of the impossibility of establishing rights
in rem over maritime public property. The various –
temporary, precarious and revocable – decisions authorising
occupancy issued to the applicant and his predecessors had not had
the effect of acknowledging that any property right had vested in the
successive occupants. They pointed out that the legislative
exceptions to the principle of inalienability excluded natural
maritime public property, which was in issue here (paragraph 36
above).
Any
property rights that might have been transferred between private
parties could not be asserted against the State and had no effect on
the nature of those rights. The State was entitled to the protection
and peaceful enjoyment of its property. It was perfectly entitled to
authorise occupation of a particular plot of land, which was
inherently inalienable and imprescriptible, without this giving rise
to rights other than mere enjoyment. To dissociate the rules
applicable to the dyke from those applicable to the house standing on
it – the existence of which had not become known to the
authorities until 1967 – would be tantamount to denying the
principles governing the State's right of property.
The
Government added that the applicant had been fully aware of the
precarious nature of the rights he held over the foreshore (tacit
acceptance of the conditions attached to the decisions authorising
occupancy, payment of a charge in acknowledgment of the debt owed to
the State as owner of the land) and of the risks incurred as a result
of the applicable legal rules.
The impossibility of acquiring property by adverse
possession invalidated the argument relating to the effect of the
length of occupation of the site. No legitimate expectation of being
able to continue enjoying the “possession” had arisen in
favour of the applicant, unlike in the case of Hamer v. Belgium
(no. 21861/03, § 78, ECHR 2007 ... (extracts)),
which, in the Government's view, concerned negligence on the
part of the public authorities and not tolerance, authorising
the existence of a “proprietary interest in peaceful enjoyment
of one's house”.
2. The Court's assessment
The
Court reiterates that the concept of “possessions”
referred to in the first part of Article 1 of Protocol No. 1 has an
autonomous meaning which is not limited to the ownership of physical
goods and is independent from the formal classification in domestic
law: certain other rights and interests constituting assets can also
be regarded as “property rights”, and thus as
“possessions” for the purposes of this provision. In each
case the issue that needs to be examined is whether the circumstances
of the case, considered as a whole, conferred on the applicant title
to a substantive interest protected by Article 1 of Protocol No. 1
(see Iatridis v. Greece [GC], no. 31107/96, § 54,
ECHR 1999 II; Öneryıldız, cited
above, § 124; and Hamer, cited above, § 75).
The
concept of “possessions” is not limited to “existing
possessions” but may also cover assets, including claims, in
respect of which the applicant can argue that he has at least a
reasonable and legitimate expectation of obtaining effective
enjoyment of a property right (see Hamer, cited above, § 75).
A legitimate expectation of being able to continue having peaceful
enjoyment of a possession must have a “sufficient basis in
national law” (see Kopecky v. Slovakia, no. 44912/98, §
52, ECHR 2004-IX).
Generally
speaking, the imprescriptibility and inalienability of public land
have not prevented the Court from concluding that “possessions”
within the meaning of this provision were at stake (see Öneryıldız,
cited above; N.A. and Others v. Turkey, no. 37451/97,
ECHR 2005 X; Tuncay v. Turkey, no. 1250/02, 12
December 2006; Köktepe v. Turkey, no. 785/03,
2 July 2008; Turgut and Others v. Turkey, no. 1411/03,
8 July 2008; and Şatır v.
Turkey, no. 36192/03, 10 March
2009). However, in those cases, except for the case of Öneryıldız,
the applicants' property titles were not disputable under the
domestic law because the applicants could legitimately consider
themselves to be “legally secure” in respect of the
validity of those titles before they were annulled in favour of the
Treasury (see Turgut and Others, cited above, §
89, and Şatir, cited above, § 32).
In
the instant case it was not disputed before the Court that the plot
of land on which the house was built belonged to the category of
maritime public property. What is in dispute is the legal
consequences of the deed of sale of 1960 and of the successive
decisions authorising occupancy of the house.
The
Court observes that the Administrative Court found that “[the
applicant] ha[d] full title to the dwelling house occupied by [him]
(see paragraph 24 above). However, in strictly applying the
principles governing public property – which authorise only
precarious and revocable private occupancy – the other domestic
courts ruled out any recognition of a right in rem over the
house in favour of the applicant. The fact that he had occupied the
house for a very long time did not, in their opinion, have any effect
on the classification of the property as inalienable and
imprescriptible maritime public property (see paragraph 26 above).
In
the circumstances, and notwithstanding the fact that the house was
purchased in good faith, as the decisions authorising occupancy did
not constitute rights in rem over public property – a
fact of which the applicant could not have been unaware, just as he
could not have been unaware of the consequences of that for his
rights over the house – (see, by contrast, Z.A.N.T.E. -
Marathonisi A.E. v. Greece, no. 14216/03, § 53, 6
December 2007), the Court doubts that he could reasonably have
expected to continue having peaceful enjoyment of the property solely
on the basis of the decisions authorising occupancy (see, mutatis
mutandis, Özden v. Turkey (no. 1), no. 11841/02,
3 May 2007, §§ 28-30, and Gündüz v. Turkey
(dec.), no. 50253/07, 18 October 2007). It observes in this
connection that all the prefectoral decisions referred to the
obligation, in the event of revocation of the decision authorising
occupancy, to restore the site to its original state if required to
do so by the authorities (see paragraph 14 above).
However,
the Court would reiterate that the fact that the domestic laws of a
State do not recognise a particular interest as a “right”
or even a “property right” does not necessarily prevent
the interest in question, in some circumstances, from being regarded
as a “possession” within the meaning of Article 1 of
Protocol No. 1. In the present case the time that elapsed had the
effect of vesting in the applicant a proprietary interest in peaceful
enjoyment of the house that was sufficiently established and weighty
to amount to a “possession” within the meaning of the
rule expressed in the first sentence of Article 1 of Protocol No. 1,
which is therefore applicable to the complaint under consideration
(see, mutatis mutandis, Hamer, cited above, § 76,
and Öneryildiz, cited above, § 129).
B. Merits
1. The parties' submissions
The
applicant
69. The
applicant challenged the ruthless application of the Coastal Areas
Act to his case, forbidding his private use of the land. The
authorisation to occupy the property that had been systematically
renewed since the end of the nineteenth century should have had a
bearing on the implementation of section 25 of the Coastal Areas Act.
That provision specified, moreover, that account had to be taken of
neighbouring land designated for public use; however, the house was
surrounded by privately owned land and buildings and not undeveloped
coastland. Furthermore, the Act did not contain any clear, binding
measure. Authorisation had been renewed after the Act had been passed
in 1986. Accordingly, however worthy a cause environmental
conservation was, the legislation relied on did not, the applicant
argued, have the scope attributed to it by the Government.
The
applicant put forward a whole series of circumstances –construction
of the house in question by other people; acquisition in good faith;
authorisation to build the dyke granted by the authorities; house
valued and insured, and liable to taxes and duties; the small area of
land involved and therefore only a few dozen metres of shore at
issue; other houses in the same area; lack of compensation – to
counter the public interest in demolishing his house.
He
considered it contradictory to propose, on the one hand,
authorisation to occupy subject to conditions and, on the other hand,
should that proposal be refused, to brandish the threat of demolition
in the public interest. Demolition would be difficult, moreover, in a
landscape that was part of a listed site. He submitted that he was
not the only one in this position; other houses in the neighbourhood
were also to be demolished, but never had been because such a measure
had not been deemed to be dictated by the legitimate aims of
environmental conservation and ensuring access to the shore.
The
applicant submitted that there was no reasonable relationship of
proportionality between the means used and the aim pursued and
considered that he had to bear an excessive and disproportionate
burden.
b) The
Government
The
Government submitted that the impugned measure amounted to a control
of the use of property, as had been stated in the case of Hamer.
They pointed out that the applicant had not, in any event, been
deprived of his house to date (contrast N.A. and Others, cited
above).
The
Government explained that pursuit of the legitimate aim, in
accordance with the public interest in ensuring that public property
was directly and permanently designated for use by all citizens,
required the authorities to protect land from illegal occupation.
Such protection, which evolved over time according to society's
expectations and concerns, included, in the event of private use that
was not compatible with the designated use of the land, the right to
call into question a right of occupation granted in the past. In the
present case authorisation had been repeatedly renewed because this
had been compatible with the designated use of the public land: for
fishing and navigation.
The
position had changed today with the enactment of the Coastal Areas
Act, which established the principle that there should be no
interference with the natural state of the seashore and provided for
enhanced public access to that public property. The Government
pointed out that the authorities thus assumed a responsibility which
should in practice result in their intervention at the appropriate
time in order to ensure that the statutory provisions enacted with
the purpose of protecting the environment were not entirely
ineffective (Hamer, cited above, § 79). The “tolerance”
shown by the authorities towards the applicant could not be
maintained unchanged since allowing dwelling houses to remain
standing, for purely private use, was no longer compatible with the
designated use of the property henceforth subject to environmental
requirements. The refusal to renew the authorisation was therefore
entirely justified. It was consistent with the careful and
progressive implementation of the Coastal Areas Act in so far as it
called into question a situation, as in this case, that had gone on
for a very long time.
The
Government submitted that the interference by the State with the
applicant's occupancy rights over public property struck a fair
balance between the right to peaceful enjoyment of the “possession”
and the general interest in protecting public property and complying
with environmental requirements.
Firstly,
the applicant had been aware that the buildings were illegal and the
authorisations precarious. The Government were at pains to point out
that the penalty for unlawful interference with the highway concerned
a holiday house and that the applicant was therefore not homeless as
a result of the non-renewal of the authorisation hitherto granted
him. Moreover, he had rejected the Prefect's proposal to renew
authorisation subject to a number of conditions. This would have
enabled him to enjoy possession of the property throughout his
lifetime and was a genuine compromise between private occupancy and
respect for public property. As he had rejected that proposal,
demolition was now the only feasible alternative measure (Hamer,
cited above, § 86).
The
continued presence of the house impeded access to the shore at high
tide, thus contravening the right of free pedestrian access to the
beach. According to the Government, the house was an insuperable
obstacle to the public right of way. Restoring the land to its
original state would reinstate public access to maritime property and
to a site listed in the local land-user plan under a zoning system
for the protection of specific natural areas.
2. The Court's assessment
The
Court reiterates that, according to its case-law, Article 1 of
Protocol No. 1, which guarantees in substance the right of property,
comprises three distinct rules (see, inter alia, James and
Others v. the United Kingdom, 21 February 1986, § 37,
Series A no. 98): the first, which is expressed in the first
sentence of the first paragraph and is of a general nature, lays down
the principle of peaceful enjoyment of property. The second rule, in
the second sentence of the same paragraph, covers deprivation of
possessions and subjects it to certain conditions. The third,
contained in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest. The second and
third rules, which are concerned with particular instances of
interference with the right to peaceful enjoyment of property, are to
be construed in the light of the general principle laid down in the
first rule (see Bruncrona v. Finland, no. 41673/98,
§§ 65-69, 16 November 2004, and Broniowski v.
Poland [GC], no. 31443/96, § 134, ECHR 2004-V).
Regarding
whether or not there has been an interference, the Court reiterates
that, in determining whether there has been a deprivation of
possessions within the second “rule”, it is necessary not
only to consider whether there has been a formal taking or
expropriation of property but to look behind the appearances and
investigate the realities of the situation complained of. Since the
Convention is intended to guarantee rights that are “practical
and effective”, it has to be ascertained whether the situation
amounted to a de facto expropriation (see Brumărescu
v. Romania [GC], no. 28342/95, § 76, ECHR
1999-VII, and Sporrong and Lönnroth v. Sweden,
23 September 1982, §§ 63 and 69-74, Series A no. 52).
The
Court observes that it is not disputed that the land on which the
house was built is classified as public property. Having regard to
the principles governing this category of property, and to the fact
that the demolition measure has not been implemented to date, the
Court is of the view that there has not been a deprivation of
possessions within the meaning of the second sentence of the first
paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis,
Saliba v. Malta, no. 4251/02, §§ 34 35, 8
November 2005; by contrast, Allard v. Sweden, no. 35179/97,
§ 50, 24 June 2003; and N.A. and Others, cited
above, §§ 31 and 38).
The
Court considers that the non-renewal of the decisions authorising
private occupancy of the public property, which the applicant must
have anticipated would one day affect him, and the resulting order to
demolish the house can be analysed as control of the use of property
in accordance with the general interest. Indeed, the rules governing
public property, in so far as they designate it as being for public
use, fall into this category. Furthermore, the reasons given by the
Prefect for refusing to renew authorisation were based on the
provisions of the Coastal Areas Act relating to the protection of the
natural state of the seashore (see, mutatis mutandis, Hamer,
cited above, § 77).
The
Court cannot agree with the applicant's submission that the aim of
the interference was not in the general interest, namely, the
protection of the property's designation as public property and of
the environment. It accepts that the domestic courts analysed the
interference with the property in question only from the standpoint
of its classification as public property. It observes, further, that
by issuing successive decisions authorising occupancy, the State de
facto weakened the protection of the property's designation as
land for the benefit of the public. However, it is since the
enactment of the Coastal Areas Act – section 1 of which
provides that “the coast is a geographical entity that requires
a specific development, conservation and enhancement policy” –
that authorisations have no longer been renewed, with the aim of
protecting the seashore and more generally the environment. The Court
reiterates that environmental conservation, which in today's society
is an increasingly important consideration (see Fredin v. Sweden
(no. 1), 18 February 1991, § 48, Series A
no. 192), has become a cause whose defence arouses the constant
and sustained interest of the public, and consequently the public
authorities. The Court has stressed this point a number of times with
regard to the protection of the countryside and forests (see Turgut
and Others, cited above, § 90; Köktepe, cited
above, § 87; and Şatir, cited above, § 33). The
protection of coastal areas, and in particular beaches, which are “a
public area open to all”, is another example (see N.A. and
Others, cited above, § 40) of an area where an
appropriate planning policy is required. The Court therefore
considers that the interference pursued a legitimate aim that was in
the general interest: to promote unrestricted access to the shore,
the importance of which has been clearly established (see paragraphs
46 to 49 and 51 and 54 above).
It
therefore remains to be determined whether, having regard to the
applicant's interest in keeping the house, the order to restore the
site to its original state is a means proportionate to the aim
pursued.
According
to well-established case-law, the second paragraph of Article 1 of
Protocol No.1 is to be read in the light of the principle enunciated
in the first sentence. Consequently, an interference must achieve a
“fair balance” between the demands of the general
interest of the community and the requirements of the protection of
the individual's fundamental rights. The search for this balance is
reflected in the structure of Article 1 of Protocol No. 1 as a whole,
and therefore also in the second paragraph thereof: there must be a
reasonable relationship of proportionality between the means employed
and the aim pursued. In determining whether this requirement is met,
the Court recognises that the State enjoys a wide margin of
appreciation with regard both to choosing the means of enforcement
and to ascertaining whether the consequences of enforcement are
justified in the general interest for the purpose of achieving the
object of the law in question (see Chassagnou and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR
1999–III). The requisite balance will not be achieved if the
person concerned has had to bear an individual and excessive burden.
The
Court has, moreover, often reiterated that regional planning and
environmental conservation policies, where the community's general
interest is pre-eminent, confer on the State a margin of appreciation
that is greater than when exclusively civil rights are at stake (see,
mutatis mutandis, Gorraiz Lizarraga and Others v. Spain,
no. 62543/00, § 70, ECHR 2004-III; Alatulkkila and
Others v. Finland, no. 33538/96, § 67, 28 July
2005; Valico S.r.l. v. Italy (dec.), no. 70074/01, ECHR
2006 III; and Lars and Astrid Fägerskiöld v. Sweden
(dec.), no. 37664/04, 26 February 2008).
The Court observes that the applicant did not build
the house himself but purchased it by notarial deed in 1960 (see
paragraphs 9 and 13 above). Since then he has occupied and maintained
the house, and paid the taxes and charges on it. The Court also
observes that the house was apparently built over a century ago on
public land drained for that purpose without any concession
authorising the construction (see paragraph 24 above). In the Court's
view, the question of whether the house was legally built should not
be a matter for consideration in the present case. In any event the
alleged illegality of the building should not be held against the
applicant, particularly as it is not disputed that he acquired his
“possession” in good faith. His situation is therefore
clearly different from that of an individual who has knowingly
erected a building without a permit (see, by contrast, Öneryıldız;
Saliba; and Hamer, cited above). The house in question is
not therefore comparable with those that have recently been illegally
built along the coast.
At
all events, since the applicant purchased the “possession”,
or possibly even since it was built, the authorities have been aware
of the existence of the house because it has been occupied on the
basis of a decision authorising occupancy which specified that “the
dyke cannot interfere in any way with
navigation rights ... or maritime coastal traffic on condition
that it is accessible
to the public at all times”. Each prefectoral decision
authorising occupancy specified the length of the authorisation and,
in accordance with former Article A 26 of the Code of State Property,
that the authorities could modify or withdraw the authorisation
should they deem it necessary, on any ground whatsoever, without
the permittee thereby acquiring any right to claim compensation.
Furthermore, it was specified that the permittee must, if required,
restore the site to its original state by demolishing the
constructions built on the public property, including those existing
on the date on which the decision was signed. The Court concludes
from this that the applicant had always known that the decisions
authorising occupancy were precarious and revocable and considers
that the authorities cannot therefore be deemed to have contributed
to maintaining uncertainty regarding the legal status of the
“possession” (see, by contrast, Beyeler v. Italy
[GC], no. 33202/96, § 119, ECHR 2000 I).
Admittedly,
the applicant has had peaceful enjoyment of the “possession”
for a long time. The Court does not, however, see any negligence on
the part of the authorities, but rather tolerance of the ongoing
occupancy, which has, moreover, been subject to certain rules.
Accordingly, there is no evidence to support the applicant's
suggestion that the authorities' responsibility for the uncertainty
regarding the status of the house increased with the passage of time
(see paragraph 60 above). The exceptional length of the occupancy and
certain hesitations on the part of the authorities (see paragraphs 14
and 29 above) should be viewed in the context at the relevant time,
when development and environmental concerns had not yet reached the
degree witnessed today. It was not until 1986 that the applicant's
situation changed, following the enactment of the Coastal Areas Act
which put an end to a policy of protecting coastal areas merely by
applying the rules governing public property. In any event, the
aforementioned tolerance could not result in a legalisation ex
post facto of the status quo.
The
Court notes the applicant's submission that the measure was not
appropriate to the general-interest aim of protecting coastal areas
and that the house was perfectly integrated into the landscape, was
even part of the national heritage and did not impede access to the
shore. The Court reiterates in this connection, however, that it is
first and foremost for the national authorities to decide which type
of measures should be imposed to protect coastal areas. These will
depend on urban and regional planning policies, which are, by
definition, evolutive, and are, par excellence, spheres in
which the State intervenes, particularly through control of property
in the general or public interest (see Gorraiz Lizarraga and
Others, cited above, § 70, and Galtiéri
v. Italy (dec.), no. 72864/01, 24 January 2006).
It
goes without saying that after such a long period of time demolition
would amount to a radical interference with the applicant's
“possession”. It is true that in the past the authorities
were perhaps less strict about private occupancy of public land.
Furthermore, prior to the Coastal Areas Act, the applicant did not
request a concession to build a dyke at a time when he could perhaps
still have done so. However, the State started reacting as early as
1973 to the risk of public property being used for private ends (see
paragraph 43 above).
The
refusal to renew authorisation of occupancy and the measure ordering
the applicant to restore the site to its condition prior to the
construction of the house correspond to a concern to apply the law
consistently and more strictly, having regard to the increasing need
to protect coastal areas and their use by the public, but also to
ensure compliance with planning regulations. Having regard to the
appeal of the coast and the degree to which it is coveted, the need
for planning control and unrestricted public access to the coast
makes it necessary to adopt a firmer policy of management of this
part of the country. The same is true of all European coastal areas.
Allowing
an exemption from the law in the case of the applicant, who cannot
rely on acquired rights, would go against the aims of the Coastal
Areas Act (see paragraphs 45 to 49 above) and undermine efforts to
achieve a better organisation of the relations between private use
and public use (see paragraph 50 above). Moreover, the applicant has
not provided proof of any inconsistency on the part of the
authorities in applying such a policy, either by showing that
neighbours in a similar situation have been exempted from the
obligation to demolish their house or by referring to any overriding
higher interest, be it architectural and/or dictated by a concern to
protect the national heritage.
The
Court notes, further, that the applicant refused the compromise
solution and the Prefect's proposal to continue enjoyment of the
house subject to conditions. The Court shares the opinion of the
Government Commissioner of the Conseil d'Etat that the
proposal in question could have provided a solution reconciling the
competing interests (see paragraph 27 above). It did not seem an
unreasonable offer, having regard to the length of the occupancy and
the applicant's “sentimental attachment” to the house and
the time sometimes required to implement an Act. The same solution
has, moreover, been adopted when implementing recent coastal laws in
other coastal countries (see, for example, Spain, paragraph 53
above).
Lastly,
the Court reiterates that where a measure controlling the use of
property is in issue, the lack of compensation is a factor to be
taken into consideration in determining whether a fair balance has
been achieved but is not of itself sufficient to constitute a
violation of Article 1 of Protocol No. 1 (see Tomaso
Galtieri, cited above, and Anonymos Touristiki Etairia
Xenodocheia Kritis v. Greece, no. 35332/05, § 45, 21
February 2008). In the instant case, having regard to the rules
governing public property, and considering that the applicant could
not have been unaware of the principle that no compensation was
payable, which was clearly stated in every decision issued since 1961
authorising his temporary occupancy of the public property (see
paragraph 14 above), the lack of compensation cannot, in the Court's
view, be regarded as a measure disproportionate to control of the use
of the applicant's property, carried out in pursuit of the general
interest.
Having
regard to all the foregoing considerations, the Court considers that
the applicant would not bear an individual and excessive burden in
the event of demolition of his house with no compensation.
Accordingly, the balance between the interests of the community and
those of the applicant would not be upset.
Consequently,
there has not been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant submitted that the measure in question also violated his
right to respect for his home, guaranteed under Article 8 of the
Convention, on account of the interference, of a non-pecuniary
nature, that severely affected all the strong roots his family had
laid down over the years. Article 8 of the Convention provides:
“1. Everyone has the right to respect
for his private and family life [and] his home ....
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government raised two objections on grounds of inadmissibility. They
submitted, firstly, that the applicant had not raised the allegation
of a violation of Article 8 before the national courts or before the
Court, which had raised this complaint of its own motion, and,
secondly, that the Convention provision was inapplicable to second
homes.
The
Court does not consider it necessary to examine the preliminary
objections on grounds of inadmissibility raised by the Government. It
observes that the complaint under Article 8 of the Convention arises
out of the same facts as those examined under Article 1 of Protocol
No. 1 and considers that it does not raise any separate issue under
this provision. Consequently, it is not necessary to examine it
separately on the merits.
FOR THESE REASONS, THE COURT
Holds by thirteen votes to four that there has
been no violation of Article 1 of Protocol No. 1;
Holds by sixteen votes to one that it is not
necessary to examine separately the complaint under Article 8 of the
Convention.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 29 March 2010.
Michael O'Boyle Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
– concurring
opinion of Judge Casadevall;
– joint partly dissenting opinion of Judges Bratza, Vajić,
David Thór Björgvinsson and Kalaydjieva;
– partly
dissenting opinion of Judge Kovler.
N.B.
M.O.B.
CONCURRING OPINION OF JUDGE CASADEVALL
(Translation)
