Trailer & Marina (Leven) Ltd., R (on the application of) v Secretary of State for the Environment, Food & Rural Affairs & Anor

Legislation controlling the use of property complies with Article 1 of the First Protocol where it strikes a fair and proportionate balance between the community’s interests and individual rights. Compensation is relevant but is not invariably required. It may restore the balance where the burden would otherwise be disproportionate.

Primary legislation is not inherently incompatible merely because its application could infringe a Convention right in an extreme case. A declaration of incompatibility requires the absence of statutory or delegated powers which, if properly exercised, could prevent, mitigate or compensate for the infringement. An unlawful exercise of such powers should instead be challenged as executive action.

The appellant owned a canal which had been notified as a site of special scientific interest. Amendments made by the Countryside and Rights of Way Act 2000 transformed the former temporary and substantially voluntary system of nature-conservation controls into mandatory restrictions. The appellant contended that the transitional application of those restrictions could severely reduce an existing owner’s income and land value without compensation.

Ouseley J dismissed the appellant’s claim for a declaration that sections 28–28Q of the Wildlife and Countryside Act 1981 were incompatible with Article 1 of the First Protocol. On appeal, the appellant did not establish that its own use of the canal amounted to de facto expropriation or imposed a disproportionate burden. It instead argued that the legislation could infringe the rights of other owners in extreme cases. The central issue was whether that hypothetical possibility demonstrated an inherent statutory incompatibility.

1. Appeal dismissed. Sections 28–28Q of the Wildlife and Countryside Act 1981, as amended by the Countryside and Rights of Way Act 2000, were not inherently incompatible with Article 1 of the First Protocol.

2. Legislation controlling the use of property must strike a fair balance between the community’s general interest and the protection of individual rights. This is a requirement of proportionality. The legislature enjoys a wide margin of judgment, and compensation is not an automatic condition of a lawful control of use. If the community benefit does not otherwise outweigh the individual detriment, compensation in an appropriate form may restore the balance.

3. The amended regime pursued the legitimate and important objective of protecting sites of special scientific interest. Substantial restrictions on profitable use, reduced income and diminished market value did not by themselves establish an infringement. The regime did not effect disguised appropriation and did not approach the hypothetical category of a measure so manifestly disproportionate that it offended the general guarantee of peaceful enjoyment.

4. A declaration of incompatibility under section 4 of the Human Rights Act 1998 may address legislation without the claimant satisfying the victim requirement governing challenges to executive action. Nevertheless, an incompatibility in principle requires proof that no primary or delegated powers, properly exercised, could prevent the statute from invading Convention rights.

5. The statutory scheme contained several safeguards capable of accommodating Convention rights. These included consent and appeal procedures, compensation-related powers, possible planning permission and compulsory-purchase mechanisms. If an extreme restriction required mitigation or compensation, these powers could provide it. An incompatible ministerial guideline or adverse executive decision would be challengeable as an unlawful act under section 6 of the Human Rights Act 1998; it would not establish that the enabling legislation was itself incompatible.

6. Ouseley J had therefore correctly rejected the claim for a declaration of incompatibility.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2004] EWCA Civ 1580. The court upheld the rejection of the claimed incompatibility.
2. High Court, Administrative Court: Ouseley J dismissed the claim for a declaration that sections 28–28Q of the Wildlife and Countryside Act 1981, as amended, were incompatible with Article 1 of the First Protocol. No citation is stated in the judgment.