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Supreme Court rules on Article 1, Protocol 1 in salmon fishing case

DATE: 16 Feb 2018

The Supreme court has given judgment in R (Mott) v Environment Agency [2018] UKSC 10.

The case concerned conditions imposed, under section 25 of the Salmon Freshwater Fisheries Act 1975 (“the 1975 Act”), by the Environment Agency on annual licences for  “putcher rank” fishery on the banks of the Severn Estuary. These limited the number of fish that Mr Mott could catch. The Agency has a long-standing policy of reducing exploitation of salmon stocks in the area. For some years, the status of salmon stock in the Wye and Usk rivers, to which mixed salmon stock in the Severn Estuary are destined to return, has been categorised as “unfavourable” or “at risk.” These rivers are designated as Special Areas of Conservation (“SAC”) under European law and are part of the wider Severn Estuary European Marine Site.

The High Court and Court of Appeal ruled that the conditions imposed, in the absence of compensation, violated Article 1, Protocol 1 (“A1P1”). Mr Mott submitted that the effect of the conditions was to nullify the practical use of his lease, and thus amounted to expropriation.  

The issues arising on the appeal to the Supreme Court were: (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, and (iii) if the latter, were there any exceptional circumstances justifying the absence of compensation. 

The Supreme Court while dismissing the Agency’s appeal:

  1. emphasised that this was an exceptional case on the facts, because of the severity and the disproportion (as compared to others) of the impact on Mr Mott;
  2. held that the Agency was correct to emphasise the special importance of environmental protection but this does not detract from the need to draw a fair balance, nor from the potential relevance of compensation;
  3. noted that 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;
  4. on the facts concluded that the conditions imposed by the Agency were closer to deprivation than mere control and this was clearly relevant to the fair balance; and
  5. held that where (unlike this case) the authorities have given proper consideration to the issues of fair balance, the courts should give weight to their assessment.

Thus while Mr Mott succeeded on what the Court clearly regarded as exceptional facts, the judgment provides a general endorsement for the lawfulness of the imposition of environmental controls without the expectation of compensation.

The judgment can be found here.

For press coverage please see here

James Maurici QC and Gwion Lewis appeared for the Environment Agency.