COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (Administrative Court)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE NEUBERGER
| THE QUEEN
(on the application of Trailer & Marina (Leven) Limited
|- and -
|Secretary of State for
the Environment, Food & Rural Affairs
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Rollits) for the Appellant
J Howell Esq QC & J Maurici Esq
(instructed by The Treasury Solicitor) for the First Respondent
(instructed by Browne Jacobson for the Second Respondent
Crown Copyright ©
Lord Justice Neuberger:
"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 or to secure the payment of taxes or other contributions or penalties."
Outline of the legislation
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
The statutory regime prior to the 2000 Act
"(b) may provide for the cost thereof being defrayed either by the owner or by [English Nature], or partly in one way and partly in another;
(c) may contain such other provisions as to the making of payment by [English Nature] and in particular for the payment by them of compensation for the effect of the restrictions mentioned in the last foregoing subsection, as may be specified in the agreement."
"(a) that the operation is carried out with [English Nature's] written consent;
(b) that the operation is carried out in accordance with the terms of an agreement under section 16 of the 1949 Act or section 15 of the 1968 Act; and
(c) that four months [increased from three months in 1985] have expired from the giving of the notice under subsection (5)."
The Secretary of State had power under s29 of the 1981 Act to extend the four month period in s28(6)(c) for up to a further 12 months for the purpose of consultation.
The 2000 Act
"(a) that the operation is carried out with [English Nature's] written consent;
(b) that the operation is carried out in accordance with the terms of an agreement under section 16 of the 1949 Act or section 15 of the 1968 Act;
(c) that the operation is carried out in accordance with a management scheme under section 28J or a management notice under section 28K."
"A person who, without reasonable excuse, contravenes section 28E(1) is guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine."
By s28P(4) a "reasonable excuse" for the purpose of subsection (1) includes:
"(a) the operation in question was authorised by a planning permission granted on application under Part III of the Town and Country Planning Act 1990 ; or
(b) the operation in question was an emergency operation particulars of which (including details of the emergency) were notified to [English Nature]."
"(1) This section applies where -
(a) [English Nature] offer to enter into an agreement under section 16 of the 1949 Act or section 15 of the 1968 Act providing for the making by them of payment to any person;
(2) The said payments shall be of such amounts as may be determined by the offeror in accordance with guidance given by the Ministers."
By subsection (3) the recipient of such an offer, who will normally be the owner or occupier of the land concerned, can refer the terms of the offer to an arbitrator to be appointed, in default of agreement, by the Secretary of State.
Article 1P1 and the right to compensation
"[T]he taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 is concerned, the protection of the right to property it affords would be largely illusory and ineffective in the absence of any equivalent principle."
"Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on the applicants [sc the persons deprived of their property]."
"Article 1 does not, however, guarantee a right to full compensation in all cases, since legitimate objectives of 'public interest', such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value."
See Lithgow -v- United Kingdom (1986) 8 EHRR 329, paragraph 121.
"72. Thus, under the first paragraph, property may be taken by the state, on payment of compensation, if the public interest so requires. And, under the second paragraph, the use of property may be restricted without compensation on similar grounds. Importantly, the question of what the public interest requires for the purpose of Article 1 of the First Protocol can, and in my opinion should, be determined according to the democratic principle - by elected local or central bodies or by ministers accountable to them.
73. There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by an independent and impartial tribunal. This is reflected in the requirement in Article 1 of the First Protocol that a taking of property must be 'subject to the conditions provided for by law'."
"In the absence of a formal expropriation, that is to say a transfer of ownership, the court considers that it must 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 that situation amounted to a de facto expropriation, as was argued by the applicants."
Sporrong & Lφnnroth -v- Sweden (1982) 5 EHRR 35 at paragraph 63. The only case in which the ECtHR may have found such circumstances to exist is Papamichalopoulos -v- Greece (1993) 16 EHRR 40.
"The fact that the permits fell within the ambit of neither of the second sentence of the first paragraph nor of the second paragraph does not mean that the interference with the [right guaranteed by Article 1P1] violated the rule contained in the first sentence of the first paragraph." - paragraph 69.
"For the purposes of the latter provision, the court must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights. The search for the balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1."
On the unusual facts of that case, it was held that there had been an infringement of Article 1P1. Any public benefit which could have been said to accrue from the existence of the expropriation notices was far outweighed by their detrimental effect on the applicant's ability to use his property in light of the unjustifiable and very long period for which the notices were in force.
"Under the second paragraph of Article 1 of Protocol No 1, the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for the purpose. However, as this provision is to be construed in the light of the general principle enunciated in the first sentence of the first paragraph, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised . In striking the fair balance thereby required between the general interests of the community and the requirements of the protection of the individual's fundamental rights, the authorities enjoy a wide margin of appreciation."
" [C]ourts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament."
As Mr Rabie says, it is debatable whether the legislation with which this case is concerned can be characterised as aimed at "a social problem". In our view, however, the legislation in the present case was plainly enacted for "the general interests of the community" (to quote from Jacobsson at paragraph 55) and the observations of Lord Nicholls are equally applicable to it.
"The possible existence of alternative solutions [to the perceived concern of the detrimental effect of high residential rents] does not in itself render the contested legislation unjustified. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way."
"In the light of these considerations, and having regard to the legitimate aims pursued by the legislation, the court finds that it cannot be said that the measures complained of by the applicants which were taken to achieve these aims was so inappropriate or disproportionate as to take them outside the state's margin of appreciation."
"The legislation regulating the use of property 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 may 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." (emphasis added)
The application of Article 1P1 in the present case
i) the effect of the restriction and reduction is such that what appears on its face to be a restriction in use in fact amounts to a de facto expropriation within the terms of Article 1P1, and/or;
ii) the effect of the restriction and reduction is such as to represent a disproportionate burden on the owner of the land concerned, even taking into account what one might characterise as the otherwise general lawfulness of the legislation.