Human rights and the moralities of property. Participation, obligation and value in R (on the application of Mott) v. Environment Agency
| Published date | 03 October 2019 |
| DOI | https://doi.org/10.1108/JPPEL-04-2019-0014 |
| Date | 03 October 2019 |
| Pages | 176-185 |
| Author | Bonnie Holligan |
| Subject Matter | Property management & built environment,Building & construction,Building & construction law,Real estate & property,Property law |
Human rights and the
moralities of property
Participation, obligation and value in R (on the
application of Mott) v. Environment Agency
Bonnie Holligan
Department of Law, Politics and Sociology, University of Sussex, Falmer, UK
Abstract
Purpose –Responding to the Supreme Court’s decision in R (on the application of Mott) v. Environment
Agency, the purposeof this study is to explore the interface between property, environmentand human rights.
It examines the space within human rights jurisprudence for a richer notion of property that can
accommodatesocial and environmental obligation and non-anthropocentricvalues.
Design/methodology/approach –In this study,a theoretical lens is applied to human rights doctrine.A
central question is the extentto which there is room within the discourseon Article 1 of Protocol 1 (A1P1) to
the European Conventionon Human Rights for a more relational and ecocentric approach.The paper engages
with the jurisprudenceof the UK courtsand that of the European Court of Human Rights, as well as the works
of scholarssuch as Jennifer Nedelsky and Nicole Graham.
Findings –It is concluded that although the judgment in Mott demonstrates the potential for A1P1 to
function as a means for rights-holders to obtain a voice in environmental decision-making processes, it
highlights the tendency of property to preserve existing structures and arrangements. When assessing
whether an individual is asked to bear an excessive burden, great weight was given in Mott to values
associatedwith livelihood. What did not feature inthe (brief) judgment was the considerationof the ecological
context in which Mr Mott’srights were embedded and the extent to which this context mighthave inherently
restricted his ability to enjoy his property. The dispute demonstrates the limitations of existing property
institutions and discourses in managing ecological conflict and fostering positive relationships and
managementpractices.
Originality/value –This study contributes to the doctrinal literature on A1P1, providing a new
perspective on the roleof human rights jurisprudence in managing environmentalconflict. It is original in its
examination of human rights discoursein light of relational and ecocentric theories of property, providinga
critique of existing valuesand paradigms. Evaluating the doctrinal reasoning in Mott withreference to this
theoreticalframework, it provides fresh insight into the limitationsof the Supreme Court’s approach. It points
to the need for moreexplicit incorporation of environmentalvalues and contexts in human rights reasoning.
Keywords Participation, Human rights, Stewardship, Property, Environmental law, Salmon fishing
Paper type Research paper
1. Introduction
To what extent is the protection of private property under the European Convention on
Human Rights (ECHR) in conflict with the need to limit human exploitation of ecological
resources? Does existing human rights jurisprudence provide an adequate framework for
the resolution of disputes regarding the costs of environmental protection? Drawing on
works by Jennifer Nedelsky,Nicole Graham and others, this article investigates the decision
in R (on the Application of Mott) v. EnvironmentAgency[1]from an ecocentric and relational
perspective. It questions which values are protected within the human rights regime,
suggesting that the decision in Mott is indicative of the tendency of human concerns, in
JPPEL
11,3
176
Received8 April 2019
Revised8 April 2019
Accepted6 May 2019
Journalof Property, Planning and
EnvironmentalLaw
Vol.11 No. 3, 2019
pp. 176-185
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-04-2019-0014
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