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 — Appeal dismissed
In 1987, a canal and adjacent caravan site owned by the appellant were designated as a site of special scientific interest (SSSI) under section 28 of the Wildlife and Countryside Act 1981. The appellant was thereby prohibited from carrying out certain operations except with the consent of the Nature Conservancy Council (NCC), or pursuant to a management agreement with the council, or after the lapse of a certain period of time. The appellant entered into a management agreement, under which it received annual compensation to reflect the losses that it would suffer in consequence of agreeing not to carry out certain commercial activities on the canal, including fishing and boating. 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. English Nature, the successor to the NCC, was prepared to enter into another management agreement. However, the effect of the new statutory scheme, together with the ministerial guidance that related to it, meant that compensation would no longer be available in respect of prohibited activities that were not being undertaken, and the prohibitions would no longer lapse after a certain period. The appellant maintained that it was being prevented from using the canal for fishing and boating, as it had planned to do, and that such restrictions had rendered the land almost valueless. 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. The Administrative Court dismissed the appellant’s claim: [2004] EWHC 153 (Admin); [2004] PLSCS 27. The appellant appealed.
Held: The appeal was dismissed.
The 1981 Act, as amended in 2000, was not vulnerable to the accusation of inherent incompatibility with Article 1. Its provisions controlling the use of property did not amount to disguised appropriation, and if in an extreme case such controls were to have that effect, several means were available whereby the statute enabled the effect to be compensated for or mitigated. Nor did the provisions approach the hypothetical category of a measure that could be considered so manifestly disproportionate that it offended against the first sentence of Article 1: Jacobsson v Sweden A/163 (1990) 12 EHRR 56 and Mellacher v Austria A/169 (1990) 12 EHRR 391 applied.
When considering whether legislation controlling the use of property in the public interest infringed Article 1, it was necessary to strike a fair balance between the general public interest and individual rights. This was tantamount to a requirement of proportionality. In appraising this, the court should have in mind that it had a reviewing role. Assessment of the advantages and disadvantages of the various legislative alternatives was primarily a matter for parliament: R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 PLR 76 and Wilson v First County Trust (No 2) [2003] UKHL 40; [2004] 1 AC 816 applied.
Provided that the state could properly take the view that the benefit to the community outweighed the detriment to any individual, a fair balance would be struck, without any requirement to compensate the individual. Should that not be the case, compensation in some appropriate form might serve to redress the balance, so that no breach of Article 1 occurred.
Gerald Rabie (instructed by Rollits, of Hull) appeared for the appellant; John Howell QC and James Maurici (instructed by the Treasury Solicitor and Browne Jacobson, of Nottingham) appeared for the respondents.
Eileen O’Grady, barrister
