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Supreme Court Decision Finds In Favour of Nigel Mott in Salmon Fishing Case vs Environmental Agency …

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Greg Lance – Watkins




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Salmon fisherman Nigel Mott due quota compensation

Nigel MOTT 01
Image caption Nigel Mott used to make £60,000 per year from selling the fish he caught

A fisherman who had to limit the number of salmon he was allowed to catch must be compensated, a court has ruled.

Nigel Mott, of Stroat, Chepstow, had fished near Lydney in Gloucestershire with a traditional putcher rank – basket-like traps – since the 1970s.

In 2012 the Environment Agency told him he could only catch 30 wild salmon per season in the estuary.

The Supreme Court ruled the the catch quota was “irrational” and should not have imposed without compensation.

‘Wholly uneconomic’

Mr Mott challenged his licence conditions for 2012, 2013 and 2014, limiting his catches respectively to 30, 23, and 24 salmon each year.

He said before the limit was introduced his average catch using the rank was some 600 salmon per year, at a value of about £100 each, giving him a gross annual income in the order of £60,000.

Image: Steve Bloom
Image caption Nigel Mott has fished near Lydney since the 1970s

Mr Mott argued the catch limit conditions have made his fishery “wholly uneconomic”, saying the lease was “worthless”, and alleging “irrationality” and a breach of his human rights.

A judge at the Supreme Court, in London, upheld both claims adding the agency could not have not properly imposed the conditions, if otherwise lawful, without payment of compensation, according to the European Court of Human Rights.

Speaking after the hearing Mr Mott said he was “very pleased with the verdict” but added his fishery remained “uneconomic”.

“It’s more of a shame for future generations than it is for me because the fisheries at Lydney were something that made Lydney a little bit special and different.”

The Environment Agency said it accepted the court’s ruling and would work with Mr Mott to agree appropriate compensation.

It added salmon stocks are at an all-time low and said it was working hard to restore them to healthy levels.

To view the original article CLICK HERE

More on this story

  • Gloucestershire salmon fisherman wins right to damages
    17 June 2016 CLICK HERE
  • Gloucestershire salmon fisherman facing return to court
    11 March 2015 CLICK HERE
  • Traditional fishing season is on
    6 June 2008 CLICK HERE
  • Rivers Wye and Usk salmon catches increase
    25 November 2012 CLICK HERE


Hilary Term [2018 ] UKSC
10 On appeal from: [201
6 ] EWCA Civ 564 JUDGMENT R (on the application of Mott)
( Respondent)

v Environment Agency

( Appellant ) before Lady Hale, President Lord Kerr Lord Carnwath Lady Black Lord Briggs

14 February 2018 Heard on 13 December 2017

Appellant Respondent James Maurici QC Stephen Hockman QC Gwion Lewis Mark Beard
(Instructed by Environment Agency Legal Services )
(Instructed by Harrison Clark Rickerbys Inc Simon Jackson )

( with whom Lady Hale, Lord Kerr, Lady Black and Lord Briggs agree) Background
1. This appeal concerns the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency (“the Agency”) restricting certain forms of salmon – fishing in the Severn Estuary.

Mr Mott’s interest
2. The respondent, Mr Mot t, has a leasehold interest in a so – called “putcher rank” fishery at Lydney on the north bank of the Severn Estuary. A putcher rank is an old fishing technique, involving the use of conical baskets or “putchers” to trap adult salmon as they attempt to retu rn from the open sea to their river of origin to spawn. Mr Mott has operated the putcher rank under successive leases since 1975. Since 1979, according to his evidence, it has been his full – time occupation. He claims that, before the limits introduced by t he Agency in 2011, his average catch using the rank was some 600 salmon per year, at a value of about £100 each, giving him a gross annual income in the order of £60,000.
3. The right to operate the rank is derived from a “Certificate of Privilege” dated
14 M ay 1866, issued by the Special Commissioners for English Fisheries, and owned by the Lydney Park Estate. The current 20 – year lease was granted jointly to Mr Mott and a Mr David Merrett, and will expire on 31 March 2018. It gives them the right to fish two stop nets and 650 putchers, in return for payment of an annual rent in two parts: a “fish rent” equivalent to 65 pounds in weight of salmon, and a “monetary rent” of (since the last review date) £276. The tenants are required to operate the putcher rank du ring each fishing season unless circumstances make it impossible. Further they may not assign, let or part with the fishery during the term of the lease, save upon death or disability, when they may with the written consent of the landlord assign to another family member.
4. To operate the putcher rank Mr Mott has required an annual licence from the Environment Agency (“the Agency”), under section 25 of the Salmon and Freshwater Fisheries Act 1975 (“the 1975 Act”). The salmon season runs from 1 June to 15 Augu st. Licences are usually issued by the Agency in late April or early May, shortly before the season opens. Until recently a licence for use of “an historic installation” such as the putcher rank (unlike other methods of fishing) could not be  made subject t o conditions limiting the number of fish taken (“catch limitations”). However, with effect from 1 January 2011, the 1975 Act was amended to enable the Agency to impose such conditions where considered “necessary … for the protection of any fishery” (paragr aph 14A of Schedule 2 to the 1975 Act, inserted by Marine and Coastal Access Act 2009 section 217(7)). Measures to protect salmon stock
5. It has been g overnment policy , as implemented by the Agency and its predecessors, supported by government, that in the interests of effective m anagement “mixed stock fisheries” should be gradually phased out, and exploitation limited, as far as possible, to places where the stock of salmon is from a single river. The Agency considers that all the fisheries in the Severn Estuary exploit a mixed sa lmon stock, with fish destined to return to the rivers Severn, Wye, Usk, Rhymney, Taff and Ely and other rivers.
6. The rivers Wye and Usk are designated as Special Areas of Conservation
(“SAC”) under the European “Habitats Directive” (Council Directive 92/44 /EEC), transposed into domestic law by the Conservation of Habit ats and Species Regulati ons 2017
(“the Habitats Regulations”). One of the main reasons for the designation of these rivers is the need to conserve their salmon stocks. The Severn Estuary itsel f is designated as a SAC, a Special Protection Area (under the Council Directive on the Conservation of Wild Birds (Council Directive 79/409/EEC)), and a Ramsar site. Together, these areas constitute the Severn Estuary European Marine Site, for which salmo n is a qualifying feature.
7. For some years the status of salmon stock in the Wye and Usk has been categorised by the responsible authorities as “unfavourable” or “at risk”, because of failure to achieve stock conservation targets or the objectives set under the Habitats Directive. Dealings between the Agency and the Tenants
8. In late 2003, the Agency attempted to purchase the Certificate of Privilege to operate the putcher rank. It agreed terms with the Estate, subject to contract, and (as the Estate required) subject to agreement with the tenants for termination of the lease. Negotiations between the Agency and the tenants took place in 2004. By an agreement in 2004, the Agency paid the tenants £30,000 compensation not to operate the putcher rank fishery durin g the 2004 fishing season. The agreement also provided a further payment of £10,000, if agreement were reached before 1 June
2005 for permanent cessation. In the event negotiations for permanent cessation

In February 2011, the Agency offered to purchase the then remaining term of
the lease (seven years), but negotiations were unsuccessful. However, in response
to the application for a licence for the 2011 season, the Agency agre
ed to pay the tenants £35,000 compensation not to operate the putcher rank fishery during that season. Another historic installation fishery was also paid not to seek a licence in the 2011 season. The only historic installation fishery that was licensed in 2011 operated under the terms of a catch condition, imposed under the new powers in paragraph 14A of Schedule 2 to the 1975 Act which had by then come into effect.
The catch condition was determined following an “appropriate assessment” under
the Habitats Regulations (“the 2011 HRA”).
The dispute
The events leading to the present dispute began with a letter from the Agency
dated 16 April 2012, informing Mr Mott of a report by the University of Exeter (“the
Exeter Report”), which, it was said, provided clear evidence of the mixed stock
nature of the catch in the Severn Estuary. He was informed of the intention to set a
catch limit of 30 fish for that year, and of the power under the amended 1975 Act to impose a catch limit without compensation. The Exeter Re
port was followed in May 2012 by a Habitats Regulations Assessment (“the 2012 HRA”) to the effect that unconstrained catches of salmon in the estuary were threatening the integrity of the River Wye SAC, and that it was necessary to limit the use of the historic installation fisheries. As HHJ Cooke, sitting as a judge of the High Court
noted (para 13),
the contemporary documents showed that the “controlling factor” was consideration of the numbers of salmon returning to the Wye to spawn, the stock in that river being considered to be the most vulnerable; and the impact of the claimant’s fishery was considered therefore in terms of its potential effect on salmon destined to spawn in the Wye.
Mr Mott did not accept the Exeter Report’s findings. Having failed to persuade its authors at a meeting in May 2012, he commissioned his own expert report from a Professor Fewster of University of Auckland, New Zealand. The disagreements between the experts were the subject of detailed study in the courts below but are not relevant to the remaining issue in this appeal.
In the meantime, Mr Mott was served with a notice under the 1975 Act on 1 June 2012, the first day of the new fishing season, limiting his catch to 30 fish.
This figure was fixed “by reference to the lowest catch by any of the historic installation fisheries that had sought a licence in the preceding ten – year period”, with some increase to mitigate the risk of “reduction in licence uptake and failure to maintain possible heritage”. A further reduction to 23 salmon was proposed for 2013, and 24 for the 2014 season.
The judge referred to a sentence in the Habitats Regulations Assessment for
2013 which explained that under the new regime “the catch by the most productive
estuary fisheries will be restricted to the approximate long – term de minimus (sic)
catch. ”: [2015] EWHC 314 (Admin); [2016] Env LR 27 (para 31). He commented
on the effect on Mr Mott:
“33. The final sentence quoted above was explained as meaning that the number of fish allowed per licence was set as being approximately the ten year average catch of the least productive of all the fisheries licensed. The practical result for the claimant is that his fishery of 650 putchers is given the same catch allocation as the smallest and least effective of the other putcher fisheries, which may operate 50 baskets or less. These he says are not commercially viable but operated only as a
hobby. Plainly, the heaviest impact of this policy falls on the claimant who relies on the fishery for his living rather than the smaller operators.”
The proceedings
14. In the present judicial review proceedings Mr Mott challenged the decisions
of the Agency to impose conditions on the licences for 2012, 2013 and 2014,
limiting catches respectively to 30, 23, and 24 salmon per season. He alleged
irrationality, and breach of his rights under the Convention. It was Mr Mott’s case
that the catch limit conditions have made the putcher rank fishery wholly
uneconomic and the lease worthless.
15. The judge upheld both claims and concluded that
the decisions to impose the catch conditions were irrational, as the Exeter Report did not provide a reasonable basis for the view that the putcher installations were having a material effect on the salmon fishery in the river Wye. He held further t
hat the Agency could not under Article 1 of Protocol 1 of the ECHR (“A1P1”) properly have imposed the conditions, if otherwise lawful, without payment of compensation.
In a judgment dated 17 June 2016, the Court of Appeal (Beatson LJ, with whom Lord Dyson MR and McFarlane LJ agreed) allowed the Agency’s appeal on the issue of irrationality, but dismissed the appeal under A1P1. It made a declaration that all three decisions amounted to an unlawful interference with his A1P1 rights “in the absence of compensation” :
[2016] EWCA Civ 564; [2016] 1 WLR 4338
Only the latter issue arises on the appeal to this court.
A1P1 Principles
Article 1 of the first Protocol (“A1P1”) to the Convention provides:
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.”
It is accepted that the right to fish granted to Mr Mott by lease is a “possession” for
these purposes.
The general principles governing the interpretation of A1P1 are well established in European and domestic authorities. In Back v Finland (2004)
EHRR 48 the Strasbourg court explained that it comprises “three distinct rules”: the
first (in the first sentence of para 52) is “of a general nature and enunciates the
principle of peaceful enjoyment of property”; the second (in the second sentence of
the same paragraph) covers “deprivation of possessions and makes it subject to
certain conditions”; the third (in the second paragraph) concerns the right of the state to “control the use of property in accordance with the general interest”. The court added:
“The three rules are not ‘distinct’ in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule. Each Page 7 of the two forms of interference defined must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised.”
The principles were summarised by Lord Reed in AXA General Insurance Ltd v
HM Advocate [2011] UKSC 46; [2012] 1 AC 868,
paras 107
The application of
A1P1, in circumstances comparable in some respects to
the present, was considered by the Court of Appeal in
(Trailer and
Marina (Leven)
Ltd) v Secretary of State
for the Environment, Food and Rural Affairs
[2005] 1 WLR
1267; [2004] EWCA Civ 1580. The claimant company owned a stretch of canal
designated a Site of Special Scientific Interest (“SSSI”) under the Wildlife and
untryside Act 1981 (“the 1981 Act”). The company entered into a management
agreement with English Nature, under which it agreed not to develop fishing and
boating activities in return for annual compensation of £19,000. The agreement
expired at the end of
2000. In January 2001, amendments to the 1981 Act (under the
Countryside and Rights of Way Act 2000), imposed a new regulatory regime under
which compensation was no longer payable. The company claimed that the amended
legislation involved a breach of thei
r rights under A1P1, and sought a declaration of
incompatibility under the Human Rig
hts Act 1998. The claim failed.
Neuberger LJ, giving the judgment of the court, reviewed the authorities
dealing with the distinction between the taking or deprivation of p
roperty and mere
control of use. As he noted, the former normally requires payment of compensation
to avoid a breach of the article; the latter does not, even if the control result in serious
financial loss. He noted that the division drawn by the Strasbou
rg jurisprudence is
not clear
cut. He referred in particular to the Grand Chamber decision in
& Lönnroth v
) 5 EHRR 8
5, for the propositions, first, that under the
second rule the court may need to “investigate the realities” of the si
complained of to determine whether it amounts to “de facto expropriation” and thus
deprivation (para 63); and that even where the interference does not fall clearly
within the ambit of either the second or third rule, it may be necessary to conside
the application of the first more general rule, and for that purpose to determine
whether a fair balance was struck between the demands of
the general interest of the community and the requirements of
he protection of the individual’
s fundamental r
On the facts of
Trailer &
, the court held:
We accept, of course, that the consequence of the amendments
effected by the 2000 Act must have been to diminish,
sometimes substantially, the scope of the uses to which an SSSI
could be
put, and accordingly to reduce, sometimes
substantially, the income which could be obtained from
activities on an SSSI, and consequently its market value. It can
fairly be said that, in those circumstances, the public benefit
enjoyed as a result of the am
endments effected by the 2000 Act
will, in the absence of any compensation provisions, have been
at the expense of the owners and occupiers of SSSIs. However,
given the purpose and genesis of the legislation, and the
jurisprudence of
, that
ot of itself justify an
argument that there h
as been an infringement of the A
rticle 1
of the f
irst Protocol
rights of the owner of an SSSI whose value
has been substantially diminished as a result of the amendments
effected by the 2000 Act.” (para 65)
As Neuberger LJ noted, t
he challenge was directed to the compatibility of the
legislation with the Convention. It had not been argued that the restrictions in the
particular case amounted to de facto expropriation, or a disproportionate burden on
the owner of the land concerned (
para 68).
An authoritative summary of the principles is found in the Grand Chamber
decision in
Czapska v Poland
(2007) 45 EHRR
, para 167:
“Not only must an interference with the right of property
pursue, on the facts as
well as in principle, a ‘le
gitimate aim’ in
the ‘general interest’
, but there must also be a reasonable
relation of proportionality between the means employed and
the aim sought to be realised
by any measures applied by the
tate, including measures designed to control the use of th
individual’s property. That requirement is expressed by the
notion of a ‘fair balance’ that must be struck between the
demands of the general interest of the community and the
requirements of the protection of the individual’s fundamental
The con
cern to achieve this balance is
reflected in the structure
of A
rticle 1 of Protocol No
1 as a whole. In each case involvin
an alleged violation of that article the c
ourt must therefore
rtain whether by reason of the s
tate’s interference the
person con
cerned had to bear a disproportionate and excessive
The judgments below
In the present case, the judge distinguished the
Trailer and
case, as a
challenge to the legislation as a whole, rather than a particular executive decision
made under it. Thus the question of infringement of A1P1 had had to be considered
in principle, and not in relation to the specific circumstances of the claima
nt. The
court had recognised that there were powers available to compensate an owner in an
“extreme case”. The decision did not therefore support a conclusion that any
restriction on property on environmental grounds can be made without a requirement
for c
ompensation (para 93)
His own conclusion that there was no reasonable basis for the restrictions
inevitably meant that the restrictions were not proportionate, however categorised.
However, he went on to consider the position apart from that finding:
In my judgment this case, like that in
Back v Finland
has elements both of deprivati
on and of control. The claimant’
right is largely but not entirely extinguished. It could be
exploited and would presumably have some small value if sold
for leisure int
erest rather than commercial use. It should be
considered under the general statement of principle with which
A1P1 commences. Given the extent of the restriction imposed,
which eliminated at least 95% of the benefit of the right, it is to
be considered as
closer to deprivation than mere control, and
that balance is relevant when considering the proportiona
lity of
the measure challenged.
In adopting the measure decided on, there is no evidence
that the Agency considered the extent of the effect on the
aimant and his livelihood in any meaningful way at all.
Though the HRAs refer to the desirability of permitting the
continuation of historic fishing met
hods to an extent described
as ‘residual’
they did not address what the consequences would
be for the ri
ghts holders affected at all, looking no further than
their own statement
of the conservation objective.
There is thus no evidence that any balanced
consideration took place at all. It would have been relevant to
consideration that the claimant’
rights were of a
commercial nature, so that by making them uneconomic to
exercise he was being deprived of his livelihood and not merely
of a pleasurable leisure activity or the opportunity to maintain
an ancient tradition. So far as the claimant is concer
ned the
position is exacerbated because the method chosen of levelling
all permitted catches down to the previous lowest meant that
by far the greatest impact fell on him whereas others who may
only have used their rights for leisure or hobby purposes woul
be less affected, and possibly scarcely affected at all.
In my judgment, the effect is that even if the Agency
could properly have imposed the total catch limit that it did, the
size of that limit and the way in which it was apportioned would
have meant that the claimant has been required to shoulder
an excessive and disproportionate burden, such that a breach of
A1P1 could only be prevented by payment of compensation.”

25. It is to be not ed (in particular from para
96) that the judge did not feel able, or find it necessary, to categorise the action under A1P1 as either deprivation
(second rule) or control (first rule). He considered it under the first general rule, as identified in Back v Finland , while regarding it as closer to deprivation for the purpose of the proportionality balance.
26. In the Court of Appeal Beatson LJ agreed with this assessment. It is unnecessary to set out his reasoning, which in substance followed that of the judge
(paras 87

89). It was sufficient in any event that the court f ound no error in the judge’s reasoning, without needing to conduct their own independent assessment of proportionality (see In r e B (A Child) ( C are Proceedings : Threshold Criteria
) [2013] 1 WLR 1911
). The appeal
27. The issues identified by the parties as aris ing in the appeal are in short (i) whether the conditions imposed by the Agency amounted to control or de facto expropriation under A1P1? (ii) if the former, did the “fair balance” require compensation to be paid ?
(iii) if the latter, were there any excepti onal circumstances justifying absence of compensation?
28. Mr Maurici QC for the Agency submitted that the restrictions clearly constituted a control, rather than expropriation, in spite of the adverse effects on Mr Mott. He referred for example to M e llacher v Austria
(1990) 12 EHRR 391 concerning a new Austrian Rent Act which had the effect of greatly reducing the rents to which certain landlords were entitled under existing tenancy agreements. The court held that there had been no de facto expropriation of th eir property, since

11 they retained the right to use it even if they had been deprived of a large part of their income. Indeed the only example in the decided cases of de facto expropriation was the exceptional case of Papamichalopoulos v Greece
(1993) 16 EH RR 440, in which the applicants were owners of a large area of valuable land in Greece, of which the military dictatorship had assumed control and transferred to the Navy to build a naval base and holiday resort for officers. Although the land was not form ally expropriated, the applicants had been deprived of the entirety of the use and value of the land in question.
29. As to whether a fair balance had been drawn, Mr Maurici drew attention to the emphasis given by European and domestic law to the protection of the environment, and the important responsibilities imposed on the Agency in that regard. The responsibility was particularly strict in respect of sites designated under the Habitats Directive (citing Sweetman v An Bord P leanála
(Galway County Council intervening)
(Case C

258/11) [2014] PTSR 1092 , para s

1). He submitted further that it would be contrary to public policy, and inconsis tent with the “polluter pays” principle, for public funds to be used to pay compensation to indi viduals such as Mr Mott, whose activities were found to have caused environmental damage.
30. As an example of the emphasis given to the environment in the Strasbourg case law, he cited Hamer v Belgium
( App lication No 21861/03
) . The court under A1P1 uph eld an order for the demolition of a house in a woodland area, which was unpermitted, but had existed as a holiday home for 37 years with the full knowledge of the authorities. The court held that the order was a control, rather than expropriation; and tha t it struck a fair balance, having regard to the wide margin of appreciation enjoyed by authorities in the field of environmental protection: “ … The environment is a cause whose defence arouses the constant and sustained interest of the public, and conse quently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considera tions, in particular where the s tate has legislated in this regard. The pub lic authorities therefore assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffec tive.” (para 79)
31. For Mr Mott, Mr Hockman QC supported the reasoning of the courts below. He submitted that the effect of the conditions was to nullify the practical use of Mr Mott’s lease, and thus amounted to expropriation. But even if they were regarded as

12 a control, the courts below were entitled to find that they required Mr Mott to shoulder an excessive and disproportionate burden, such that breach of A1P1 could only be prevented by payment of compensation. It was accepted that the Agency had power to pay compensation, and it had done so in the past. The 1975 Act itself
(even following the amendments made by the 2009 Act), recognised that compensation might be necessary in certain cases. Thus, section 26 dealing with limitation of licences for fishing w ith nets provides that where an order under the section would prevent a person from fishing “in circumstances where that person is wholly dependent on the fishing for his livelihood”, the Agency “may pay that person such amount by way of compensation as it considers appropriate”. Discussion
32. The Strasbourg cases show that the distinction between expropriation and control is neither clear

cut, nor crucial to the analysis. Viewed from the Agency’s point of view, and that of the public, the restrictions imposed in the present case were (as found by the Court of Appeal) a proper exercise of the Agency’s powers to control fishing activity in the interests of the protection of the environment. We were not referred to any case in which such action has been treated a s amounting to expropriation merely because of the extreme effects on particular individuals or their businesses. However, it was still necessary to consider whether the effect on the particular claimant was excessive and disproportionate.
33. Mr Maurici is ri ght to emphasise the special importance to be attached to the protection of the environment. However, this does not detract from the need to draw a “fair balance”, nor from the potential relevance of compensation in that context. As Mr Hockman pointed out, the potential need for compensation is recognised in other parts of the 1975 Act itself.
34. Compensation played a part in a Strasbourg case close to the present on the facts. Posti v Finland
(2003) 37 EHRR 6 concerned a claim by two fishermen who operated un der leases granted by the Finnish s tate. They complained that restrictions imposed by the government to safeguard fish stocks had failed to strike a fair balance under A1P1. The court held that the fishing restrictions were a control, rather than deprivati on of property, and that the interference was justified and proportionate; the interference “did not compl etely extinguish the applicants’ right to fish salmon and saltwater trout in the relevant waters”, and they had received compens ation for losses suffe red (para
35. By contrast in Pindstrup Mosebru g A/S v Denmark
( App lication No
) , absence of compensation did not prevent the court ruling inadmissible a claim in respect of restrictions on the commercial exploitation of a peat bog,

13 regarded as geologically and biologically unique. The court upheld the assessment of the domestic courts that the effect on the claimants was not unduly severe, having regard to the findings that they had not invested in production facilities for the purpose of ex ercising their extraction rights at the bog and that they had access to the extraction of considerable amounts of peat elsewhere
36. Against that background I am unable to fault the judge’s analysis of the applicable legal principles in this case. As already noted, he did not find it necessary to categorise the measure as either expropriation or control. It was enough that it “eliminated at least 95% of the benefit of the right”, thus making it “closer to deprivation than mere control”. This was clearly releva nt to the “fair balance”. Yet the Agency had given no consideration to the particular impact on his livelihood. The impact was exacerbated because the method chosen meant that by far the greatest impact fell on him, as compared to others whose use may have been only for leisure purposes. Indeed the judge might have gone further. He thought that the lease might have retained “some small value ” if sold for leisure rather than commercial use. However, as Mr Hockman pointed out, even that is doubtful given the strict limits in th e lease on the power to assign.
37. I would therefore uphold the decision of the courts below. In doing so, I would emphasise that this was an exceptional case on the facts, because of the severi ty and the disproportion (as compared to others) of the impact on Mr Mott. As the Strasbourg cases show, the national authorities have a wide margin of discretion in the imposition of necessary environmental controls, and A1P1 gives no general expectation of compensation for adverse effects. Furthermore, where (unlike this case) the authorities have given proper consideration to the issues of fair balance, the courts should g ive weight to their assessment.
38. I would dismiss the appeal.






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