Trailer and Marina (Leven) Limited (Claimant) – and – (1) The Secretary of State for the Environment, Food and Rural Affairs (2) English Nature (Defendants)

By this application for judicial review, the claimant sought a declaration that sections 28-32 of the Wildlife and Countryside Act 1981 were incompatible with its rights under ECHR Article 1, Protocol 1. The claimant owned the Leven canal in Yorkshire. When the claimant acquired the site, it had already been notified as an “area of special scientific interest” under the National Parks and Access to the Countryside Act 1949 because of its flora and fauna. This meant that specified operations were prohibited. In 1997, the claimant and the institution in charge, English Nature, entered into a management agreement pursuant to which compensation was paid to the claimant. This reflected the losses which he would suffer in consequence of its agreement not to carry out certain commercial activities, fishing and boating, which it wished to commence or intensify on the canal. This agreement lapsed at the end of 2000. On 30th January 2001, the Wildlife and Countryside Act was amended. Although English Nature was prepared to enter into another management agreement, the basis upon which it would pay compensation had changed. It was unable, as a result of the new statutory scheme, to pay compensation in respect of losses of profit or capital value based on activities which the landowner would wish to undertake but was prohibited from undertaking. The claimant said that it was now prevented from using the canal in the way in which it intended for boating and fishing, and that it was without compensation for that loss. The restrictions had reduced the value of the land almost to nil. A statutory scheme which permitted that to happen without compensation breached Article 1, Protocol 1 ECHR. There was no dispute that the relevant legislation interfered with the claimant’s property through the new controls over its use. The issue was whether that interference was proportionate in the absence of an express statutory provision providing for compensation to be paid on the former basis. The Court was of the view that the restriction on compensation reflected a changing view over time as to the relationship between an owner’s rights and a public interest, the importance of which had grown significantly. Compensation was not usually payable at all for what could be the financially very damaging consequences of changing planning designations. In judging the balance struck between the interests of the landowner and providing the protection to nature conservation interests, the Court considered that a very considerable area of discretion should be allowed to the legislation. The issue of whether public money should be available to compensate a landowner for not carrying out an operation which was harmful to the public interest was clearly a matter for Parliament’s judgment. The way in which nature conservation interest was best advanced was a matter for a degree of expert advice, and for experience of the ways in which the previous system had proved deficient. This was clearly not an area in which the court could claim any especially relevant experience or expertise. The court was simply not in as good a position as the other decision-makers to balance the relevant factors in the public interest. There was nothing in the general tenor of European Court of Human Rights decisions on the payment of compensation for the control of use which helped the claimant. Their tenor was that such compensation was not usually necessary. The Court formulated its response in form of a question: Why should a land owner be paid for not harming nature conservation interests? It concluded that the interference with the landowner’s rights was not disproportionate. Accordingly the application was dismissed.