Case Note: Responding to claims of property interests on maritime public property interfering with Environmental Protection

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Keywords: European Convention on Human Rights, environmental protection, maritime public property, fair-balance test, right to respect for private and family life, protection of property

INTRODUCTION

Following a utilitarian approach the European Court of Human Rights ('the Court') has established that environmental protection is a public interest that should be secured similarly to economic development.1 The Court's jurisprudence has indicated that a fair balance should be struck between the individuals' interests and those of the community as a whole, in deciding whether an interference with one's rights is justified to protect the environment. In the past few decades, cases brought before the Court suggest that the interference with an individual's rights can be justified when this protects the environment, since this is considered to be in the public interest. Depalle v France is an example of this trend, although the special circumstances in this case focused on the occupation of an illegally built house, rather than the occupation of a 'Green Zone'.2 Through this decision, the Court has made it clear that long-term occupation of public property does not confer property rights over the land in question, especially when these are put to a test. This test is referred to as the 'fair-balance test' through which the Court determines whether the state has struck a fair balance between the individual's interests and the interests of the community as a whole.3 A tendency has been identified of establishing environmental protection as a public interest, allowing the interference with one's individual rights, when this satisfies the 'fair-balance test'. So far, the Court's jurisprudence also indicates that when individual interests concern environmental quality and the public interest concerns economic development, then satisfying this public interest will also allow an interference with the individual's rights. Environmental protection is now considered to be of equal importance to economic development, in that both allow an interference with the rights of the individual.

Facts of the case

The applicant occupied, as a second home, a house that had been built illegally on a dyke within public maritime property. The house was built on the shore around 1886 and the applicant bought it in good faith in 1960. He occupied the house with his family under temporary occupation permits, which he renewed regularly until 1991. His last permit expired on 31 December 1992. In March 1993, his application to renew his family's occupancy permission was refused, on the basis of the entry into force of section 25 of the Coastal Areas (Development, Protection and Enhancement) Act (Law No. 86.2). This Act provided for the protection of the natural state of the shore and for free public access to the area.4 The applicant made a series of unsuccessful applications for permission to build a new dyke and to renew his occupation permit. When the Prefect asked for the demolition of the house without offering compensation, the applicant brought an application before the European Court of Human Rights. He alleged a violation of his rights under Article 1 of Protocol 1 - Protection of property and Article 8 - Right to respect for private and family life.

Commentary

The applicant claimed that the state's decision interfered with his rights under Article 8, as it upset the family life he had developed in the house. In addition, he claimed that the decision to refuse permission for any further occupation of the dwelling house amounted to an interference with his rights under Article 1 of Protocol 1.

The Court's jurisprudence indicates two types of environmental claim for violations of rights under Article 1 of Protocol 1 - Protection of property and Article 8 - Right to respect for private and family life. The first type involves claims of violations of these rights due to polluting activities.3 These cases target either a state's activities, (e.g., the operation of airports) or the failure of the state to safeguard the applicant's rights (e.g., by regulating polluting activities). The second category of application includes claims for violations of rights caused by state environmental policies.6 These usually involve policies creating 'Green Zones' and enforcing planning controls, which both restrict the alteration of existing buildings and any further development.

The present case comes under the second category, since the applicant claimed that the control of the use of property imposed by the state interfered with his rights under the European Convention on Human Rights.

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