Site of special scientific interest — Change to compensation scheme — Whether new scheme compatible with Article 1 of First Protocol to European Convention on Human Rights — Section 28 of Wildlife and Countryside Act 1981 — Schedule 9 to Countryside and Rights of Way Act 2000 — Claim dismissed
In 1987, a canal and adjacent caravan site owned by the claimant were designated as a site of special scientific interest (SSSI) under section 28 of the Wildlife and Countryside Act 1981. As a result, the claimant was prohibited from carrying out certain operations, except with the consent of the Nature Conservancy Council (NCC), or pursuant to a management agreement with it, or after the lapse of a certain period of time. The claimant entered into a management agreement, under which it received annual compensation to reflect losses that it would suffer in consequence of agreeing not to carry out certain commercial activities on the canal, including fishing and boating. These were activities that it was not yet carrying out, but intended to undertake, or would be able to undertake if it waited for the temporary prohibition to lapse. The agreement lapsed at the end of 2000.
In January 2001, the 1981 Act was amended by Schedule 9 to the Countryside and Rights of Way Act 2000. Although English Nature, the successor to the NCC, was prepared to enter into another management agreement, the basis upon which it could pay compensation had changed. As a result of the new statutory scheme, and ministerial guidance relating to it, compensation was no longer available in respect of prohibited activities that were not being undertaken, and the prohibitions no longer lapsed after a certain time. The claimant maintained that it was now prevented from using the canal for fishing and boating, as it had intended to do, and that such restrictions had reduced the value of the land almost to nil. It argued that, by preventing it from claiming compensation for that loss, the statutory scheme breached its right to peaceful enjoyment of its possessions under Article 1 of the First Protocol to the European Convention on Human Rights.
Held: The claim was dismissed.
The claimant’s Article 1 rights had not been breached. The degree of interference was proportionate, despite the absence of compensation for the loss of the ability to undertake prospective harmful operations and the loss of the annual compensation. The case concerned interference with the claimant’s property rights arising from the controlled use of its land rather than the deprivation of its property: Oerlemans v Netherlands (1989) 62 DR 200 and Fisher v English Nature [2003] EWHC 1599 (Admin); [2003] 4 All ER 366 applied. The reason for the interference, namely protection and enhancement of nature conservation interests, was a legitimate interest. Such interests and SSSIs were an important aspect of social policy. This was an area within which a wide margin of discretion should be accorded to the decisions of the legislature and the executive. Evaluating the importance of SSSIs, the need for strengthening the system for their protection and enhancement, and the question of whether payments should be made to landowners for refraining from carrying out harmful operations on sites of national interest were matters that arms of the state other than the judiciary were better placed to determine: Sporrong and Lönnroth v Sweden A/52 (1983) EHRR 35 and Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 applied.
The changes to the legislation were the latest in a slowly evolving legislative structure that placed increased emphasis upon the protection and enhancement of nature conservation interests. The restriction of compensation reflected a changing view as to the relationship between an owner’s rights and the public interest, the importance of which had grown significantly. It did not put the owner of an SSSI into any worse a position overall than the owner of other properties that had been protected in the public interest. The scheme was not at odds with the general position in relation to the control of use of land. It applied to SSSIs generally, and it did not leave the owner to bear all the burden of the consequences of designation, because a compensation system was in place, whereby compensation could be paid for loss of income from activities being undertaken. The legislative scheme, taken as a whole, struck a fair balance between the relevant interests within the wide area of discretion available.
Gerald Rabie (instructed by Rollits, of Hull) appeared for the claimant; James Maurici (instructed by the Treasury Solicitor and Browne Jacobson, of Nottingham) appeared for the defendants.
Sally Dobson, barrister
