Trailer & Marina (Leven) Ltd v Secretary of State for Environment, Food & Rural Affairs & Anor

Controls on the use of land for environmental protection do not ordinarily require compensation for every resulting loss. The availability of compensation remains relevant to whether a fair balance has been struck under Article 1 of Protocol 1.

Proportionality must be assessed by considering the statutory scheme as a whole, including consents, appeals, management payments and compulsory-purchase compensation. Parliament and the executive enjoy a wide area of discretionary judgment in environmental policy, particularly where scientific, economic and public-interest assessments are involved.

The claimant owned a canal designated as a site of special scientific interest under the Wildlife and Countryside Act 1981. Amendments made by the Countryside and Rights of Way Act 2000 strengthened the regulatory regime and altered the basis on which management-agreement payments were calculated.

The claimant argued that the amended scheme and related ministerial guidance, which excluded compensation for prospective commercial activities not yet undertaken, substantially reduced the canal’s value without adequate compensation. It sought judicial review and a declaration of incompatibility under Article 1 of Protocol 1.

1. Application dismissed. The amended statutory scheme and related guidance were compatible with Article 1 of Protocol 1.
2. The interference was a control of the use of property, not deprivation or de facto expropriation. Title remained with the claimant and the canal retained some income-producing uses.
3. There is no general rule that compensation is required in a control-of-use case. Its availability and amount are relevant to the fair-balance assessment. The absence of compensation may exceptionally contribute to disproportionality, but this case did not approach de facto expropriation.
4. A wide area of discretionary judgment was appropriate for Parliament and the executive. The regime involved environmental, scientific, economic and public-expenditure choices, expert advice and consultation. The court was not as well placed as the other decision-makers to balance those matters.
5. The scheme had to be considered as a whole. It provided for consent, appeals, management agreements, payments for income foregone and specified costs, and compulsory-purchase mechanisms. Economic and social interests could also be relevant within the consent and planning processes.
6. The claimant had not established that the canal had lost virtually all value, had not fully explored the flexibility available through consent or agreement, and might in any event have required planning permission for some proposed works. The legislative balance was fair and the interference proportionate.