R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Neuberger
Judgment Date16 Dec 2004
Neutral Citation[2004] EWCA Civ 1580
Docket NumberCase No: C1/2004/0379/QBACF CO/1700/03

[2004] EWCA Civ 1580

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (Administrative Court)

(Ouseley J)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Phillips of Worth Matravers Mr

Lord Justice Sedley and

Lord Justice Neuberger

Case No: C1/2004/0379/QBACF CO/1700/03

Between:
The Queen (On The Application of Trailer & Marina (Leven) Limited
Appellant
and
Secretary of State for
The Environment, Food & Rural Affairs
1st Respondent
and
English Nature
2nd Respondent

G Rabie Esq

(instructed by Rollits) for the Appellant J Howell Esq QC & J Maurici Esq

(instructed by The Treasury Solicitor) for the First Respondent

(instructed by Browne Jacobson for the Second Respondent

Lord Justice Neuberger
1

This is the judgment of the court, to which all members have contributed.

Introductory

2

This appeal is brought by Trailer and Marina (Leven) Limited ("the company") against the dismissal, by Ouseley J on 6 th February 2004, of its claim for a declaration that sections 28–28Q of the Wildlife and Countryside Act 1981 ("the 1981 Act"), as amended by the Countryside and Rights of Way Act 2000 ("the 2000 Act"), are incompatible with its rights under Article 1 of the First Protocol ("Article 1P1") of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") .

3

Article 1P1 is in these terms:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

4

As he developed his case, Mr Gerald Rabie, who appears for the company, somewhat reformulated the company's case from how it was put below. It is now that the effect of the legislation in question was or could be to infringe the Convention rights of some people, and that this is sufficient for the company's purposes, because it should lead the court to grant a declaration of incompatibility. As we understand it, armed with such a declaration, the company would then seek to establish on another occasion that it falls within the class of people whose Convention rights have been infringed by such incompatibility.

5

That approach appears to raise the point whether, and if so on what basis, the court should grant a declaration of incompatibility in relation to a statutory provision which might, perhaps only in rare circumstances, give rise to an infringement of Convention rights. Mr Rabie's argument in its final formulation is that the amendments effected to the 1981 Act by the 2000 Act could, in some circumstances, infringe the Convention rights of those who, at the date the amendments came into force, were owners of land subject to the provisions of the 1981 Act. The primary case on behalf of the respondents, the Secretary of State and English Nature (advanced by Mr John Howell QC, who appears with Mr James Maurici) is that, properly interpreted, the 1981 Act as amended by the 2000 Act could never result in such an infringement. However, they contend, in the alternative, that any infringement could only occur in such unusual and extreme circumstances, that it would be inappropriate for the court to grant a declaration of incompatibility.

6

According to the company's evidence, a summary of the relevant facts is as follows. Not all these facts are agreed by the respondents. However, it is unnecessary (and may not be sensibly possible) for this court to seek to resolve any issue in this connection.

The facts

7

The Leven Canal ("the canal") was constructed by Charlotte, Lady Bethell at the beginning of the 19 th Century. It runs for a total of five kilometres in a westerly direction from the head of the canal in Leven to the River Hull. By 1935 it appears that the commercial use of the canal had effectively ceased, and only a small number of craft were using it. In 1962 much of the canal was notified as an "Area of Special Scientific Interest" under the National Parks and Access to the Countryside Act 1949 ("the 1949 Act") .

8

In 1971, the company purchased the freehold in the canal (including its banks) . It would appear that the directors of the company intended, and indeed still wish, to restore the connection between Leven and the River Hull by repairing the lock (which is currently disused), to open the river to craft, so that commercial fishing could resume, and to make the canal available to recreational anglers. To that end, the company's evidence is that it dredged the canal, controlled the reeds and waterweed, began the task of restoring leaking and subsided canal banks, trimmed the banks with mowing machines, and started fish farming.

9

In 1987, the Nature Conservancy Council, now (since January 2001) English Nature (as we shall refer to them), the second respondent, notified the whole of the canal as a Site of Special Scientific Interest ("SSSI"), under s28 of the 1981 Act. This notification ("the Notification") specified a wide range of operations which, as it appeared to English Nature, would be likely to damage the flora and fauna on the site. With the consent of English Nature, the company nonetheless continued various operations on the canal. However, during 1995, the company wished to carry out certain works, to which English Nature objected, but the company gave notice under s28(5) of the 1981 Act of its intention to carry out that work. Accordingly, on 7 th August 1995, pursuant to s29 of the 1981 Act, the Secretary of State for the Environment made the Leven Canal (Humberside) Nature Conservation Order 1995 ("the 1995 order") . Because the company objected to the making of the 1995 order, an inspector was appointed, and he held a local inquiry, following which he reported to the Secretary of State, on 15 th December 1995, upholding the 1995 order save in one minor respect.

10

On 27 th March 1997, the company and English Nature entered into a Management Agreement under s15 of the Countryside Act 1968 ("the 1968 Act") . The effect of the agreement was that the company accepted fairly comprehensive restrictions in relation to its activities on the canal, in return for an annual payment of £19,000. The Management Agreement expired on 31 st December 2000.

11

On 30 th January 2001, Part III of the 2000 Act came into force. It effected substantial amendments to the 1981 Act, particularly in relation to SSSIs. As a result, English Nature indicated to the company that the Notification was "absolute", and that it would not give consent to any "works or leisure activities" on the canal. English Nature further stated that the amendments to the law effected by the 2000 Act would have, amongst its consequences, the result that any new Management Agreement would not provide for a payment to compensate the company for the effect of the Notification, and in particular the inability to carry on activities on the canal, whether by way of compensation for a reduction in the value of the canal, or for the loss of profit from those activities. By the time the 2000 Act came into force, it appears that about 7% of the area of England has been notified as SSSIs, of which there were 20 canals. It does not appear that a substantial increase in the number of SSSIs was then—or is now—anticipated.

Outline of the legislation

12

Although s23 of the 1949 Act provided for notification that certain land was of "special scientific interest", no restrictions were thereby placed on the operations which could be carried out on such land. However, s15 of the 1968 Act introduced a scheme of voluntary restrictions on operations which could be carried out on an SSSI, and authorised English Nature to enter into management agreements with owners of such sites. Under such an agreement, the owner, in consideration of a payment, could voluntarily undertake to limit the activities on an SSSI.

13

Subsequently, ss28–31 of the 1981 Act, as originally enacted, introduced a scheme whereby the owner of what would now be called an SSSI could, for a limited period of time, and pending agreement for a management agreement, be prohibited from carrying out operations, specified by English Nature as likely to have an environmentally detrimental effect on the site. While the effect of those sections was to prevent the owner of an SSSI, under pain of criminal penalties, from carrying out activities prohibited by English Nature, the owner could lawfully perform such operations by giving notice to English Nature of his intention to do so. There then followed a period within which negotiations for a management agreement under s15 of the 1968 Act could proceed. If no management agreement was negotiated within the relevant period, the only way in which the owner of the SSSI could be prevented from carrying out the activity or activities to which English Nature objected was by English Nature exercising a right to acquire the site compulsorily.

14

The 2000 Act represented a marked departure in policy, effectively replacing voluntary control by mandatory control. The amendments to the 1981 Act were largely effected by altering s28, and adding a number of new sections after s28, of the 1981 Act.

15

The company's contention is that the application of the amendments to the 1981 Act, as effected by the 2000 Act, to SSSIs, was, at least in some...

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