R (on the application of Mott) v Environment Agency

This case concerns the compatibility with Article 1 of the First Protocol to the European Convention on Human Rights (A1P1) of licensing conditions imposed by the Environment Agency that limited the annual salmon catch from an historic putcher-rank fishery on the Severn Estuary. The Agency relied on its amended powers under the Salmon and Freshwater Fisheries Act 1975 (in particular paragraph 14A of Schedule 2, inserted by the Marine and Coastal Access Act 2009 s.217(7)) and on habitat protection measures under the Habitats Regulations. The Supreme Court accepted the general importance of environmental protection and the wide margin of appreciation afforded to national authorities, but concluded that on the facts the catch limits (reducing the claimant’s entitlement by about 95%) and the method of apportionment had not been applied with adequate regard to the claimant’s particular position. The interference was therefore disproportionate and required compensation under A1P1. The Court dismissed the Agency’s appeal, upholding the finding that the measures amounted, in effect, to an excessive and disproportionate burden on the claimant unless compensation was paid.

Background and parties:

• The respondent, Mr Mott, held a long-standing lease and a Certificate of Privilege entitling him to operate a 650-putcher rank fishery at Lydney on the Severn Estuary and had depended on it as his livelihood since 1975.
• The Environment Agency issued annual licences under section 25 of the Salmon and Freshwater Fisheries Act 1975; from 1 January 2011 the Agency had power to impose catch limits on historic installations by virtue of paragraph 14A of Schedule 2 to the 1975 Act (inserted by the Marine and Coastal Access Act 2009 s.217(7)).
• The estuary and nearby rivers (notably the Wye and Usk) are designated European sites under the Habitats Directive, and the Agency conducted Habitats Regulations Assessments (HRAs) concluding that catches needed to be limited to protect salmon populations.

Procedural posture and relief sought:

• Mr Mott applied for judicial review of the Agency’s decisions to impose catch limits for 2012, 2013 and 2014 (30, 23 and 24 salmon respectively), alleging irrationality and breach of A1P1 because the conditions made his fishery uneconomic and the lease worthless.
• The High Court (HHJ Cooke) upheld both grounds. The Court of Appeal allowed the Agency’s appeal on irrationality but upheld the A1P1 claim, declaring the interferences unlawful in the absence of compensation ([2016] EWCA Civ 564).
• The present appeal to the Supreme Court raised only the A1P1 issue.

Issues framed by the court:

1. Whether the licensing conditions constituted a control of the use of property or a de facto expropriation (deprivation) under A1P1.
2. If a control, whether the measure struck a "fair balance" between the general interest of environmental protection and the claimant’s property rights, or whether the claimant had to bear a disproportionate and excessive burden requiring compensation.
3. If a deprivation, whether any exceptional circumstances justified absence of compensation.

Reasoning and conclusions:

• The Court reviewed Strasbourg and domestic authorities (including Back v Finland, Sporrong & Lönnroth, Hutten-Czapska, Trailer and Marina, Mellacher and Papamichalopoulos) and emphasised the high public interest in environmental protection and the wide margin of appreciation enjoyed by national authorities in that field.
• The distinction between control and deprivation was not determinative; the decisive question was whether a fair balance had been struck and whether the claimant had been required to bear an excessive burden.
• On the facts the measures eliminated about 95% of the claimant’s benefit and were therefore closer to deprivation than mere control; the Agency had given no meaningful consideration to the effect on the claimant’s livelihood and had apportioned the reductions in a way that disproportionately affected him compared with small hobby operators.
• The Court therefore upheld the lower courts’ conclusion that, exceptionally on these facts, A1P1 required compensation and dismissed the Agency’s appeal.

Context and implications:

• The Court stressed that this was an exceptional factual case and did not create a general expectation of compensation for environmental controls where authorities have properly considered proportionality and the fair balance.

The appeal is dismissed. Although national authorities have a wide margin of discretion in imposing environmental controls and A1P1 does not generally require compensation for regulatory interferences, on the exceptional facts of this case the catch-limit conditions imposed by the Agency eliminated most of the claimant’s economic interest, were unfairly apportioned and were adopted without meaningful consideration of his livelihood; accordingly they imposed a disproportionate and excessive burden under Article 1 of the First Protocol, so that compensation was required.

Judicial review in the High Court: R (Mott) [2015] EWHC 314 (Admin) ; Court of Appeal: [2016] EWCA Civ 564 ; appeal to the Supreme Court: [2018] UKSC 10 (this judgment). The Court of Appeal allowed the Agency’s appeal on irrationality but upheld the A1P1 claim and declared the interferences unlawful in the absence of compensation.