Environment – Human rights – Fishing rights – Respondent owning leasehold right to fish for salmon using ancient method known as “putcher rank” – Appellant imposing limits on numbers of salmon to be caught using putchers – Limit based on lowest catch sought by any licence holder in past 10 years – Whether unlawful interference with respondent’s right to peaceful enjoyment of possessions under Article 1 of First Protocol to European Convention on Human Rights – Appeal dismissed
The respondent was the leasehold owner of a right to fish for salmon at Lydney, in the Severn estuary, using a putcher rank (an ancient method of fishing in which conical baskets were used to trap adult salmon as they made their way back from the sea to the river of their birth to spawn). Prior to 2011, that method of fishing was an “historic installation” excepted from the statutory power of the appellant agency, as the body responsible for issuing fishing licences, to impose limits on the number of fish caught. That position changed early in 2011, when para 14A was introduced into Schedule 2 to the Salmon and Freshwater Fisheries Act 1975. From 2012 onwards, the appellant imposed an annual limit on the number of salmon that could be caught using a putcher rank, with the limit based on the lowest catch sought by any holder of a historic installation licence in the past 10 years.
Before the introduction of the limit, fishing for salmon was the full-time occupation of the respondent, who caught about 600 salmon a year and sold them for a gross income of about £60,000 per year. Thereafter, the “catch conditions” imposed on their licences reduced the permissible catch by about 95%. While the respondent was paid compensation on various occasions between 2004 and 2011 not to operate the fishery during particular seasons, no compensation was paid to him in relation to the restrictions imposed between 2012 and 2014.
The respondent began judicial review proceedings against the appellant’s decision to impose conditions. He claimed that the catch limit conditions made his fishery wholly uneconomic to operate. He also claimed that the decisions were irrational and in breach of his property rights under Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR). The judge held that the decisions were irrational and that, under A1P1, the appellant could not properly have imposed the conditions, if otherwise lawful, without payment of compensation: see [2015] EWHC 314 (Admin). The Court of Appeal allowed the appellant’s appeal on the issue of irrationality, but dismissed the appeal under A1P1: see [2016] EWCA Civ 564; [2016] PLSCS 174. The appellant appealed on the A1P1 issue only.
Held: The appeal was dismissed.
(1) Irrespective of whether an interference with property rights could be classified as a deprivation or a control of use under A1P1, it might be necessary to consider 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. In each case involving an alleged violation of A1P1 the court had to ascertain whether by reason of the state’s interference the person concerned had to bear a disproportionate and excessive burden. The issues arising in the present appeal were: (i) whether the conditions imposed by the appellant amounted to control or de facto expropriation under A1P1, (ii) if the former, did the “fair balance” require compensation to be paid, and (iii) if the latter, were there any exceptional circumstances justifying the absence of compensation: Sporrong & Lonnroth v Sweden (1982) 5 EHRR 85, R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 1580; [2004] PLSCS 299; [2005] 1 WLR 1267 and Hutten-Czapska v Poland (2007) 45 EHRR 4 applied.
(2) The distinction between expropriation and control under the case law of the European Court of Human Rights (ECtHR) was neither clear-cut nor crucial to the present analysis. Viewed from the appellant’s point of view, and that of the public, the restrictions imposed in the present case were a proper exercise of the appellant’s powers to control fishing activity in the interests of the protection of the environment. The court had not been referred to any case in which such action had been treated as amounting to expropriation merely because of the extreme effects on particular individuals or their businesses. However, it was still necessary to consider whether the effect on the particular claimant was excessive and disproportionate.
(3) The appellant was right to emphasise the special importance of environmental protection but that did not detract from the need to draw a fair balance, nor from the potential relevance of compensation. Against the background of the ECtHR case law, the court was unable to fault the judge’s analysis of the applicable legal principles in this case. The fact that the conditions imposed by the appellant were closer to deprivation than mere control was clearly relevant to the fair balance. The appellant had given no consideration to the particular impact on the respondent’s livelihood, which was severe. The judge suggested that the lease retained “some small value” if sold for leisure rather than commercial use, but that was doubtful given the strict limits in the lease on the power to assign: Posti v Finland (2003) 37 EHRR 6 and Pindstrup Mosebrug A/S v Denmark (2008) (Application No 34943/06) considered.
Per curiam: This was an exceptional case on the facts, because of the severity and the disproportion (as compared to others) of the impact on the respondent. The national authorities had a wide margin of discretion in the imposition of necessary environmental controls, and A1P1 gave no general expectation of compensation for adverse effects. Furthermore, where (unlike in the present case) the authorities had given proper consideration to the issues of fair balance, the courts should give weight to their assessment.
James Maurici QC and Gwion Lewis (instructed by the legal department of the Environment Agency) appeared for the appellant; Stephen Hockman QC and Mark Beard (instructed by Harrison Clark Rickerbys, Inc Simon Jackson) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Mott) v Environment Agency
