Out-Law News | 16 Feb 2018 | 4:44 pm | 3 min. read
The Environment Agency (EA) must compensate a fisherman for the "severe and disproportionate" effect of conditions imposed on his fishing license limiting the number of fish he can catch in one year, the UK Supreme Court has ruled.
The court emphasised that Nigel Mott's case was an "exceptional" one, as there was "no general expectation of compensation for adverse effects" of environmental controls. However, the recognition by the UK's highest court of Mott's valid claim would "no doubt act as a cautionary note to regulators of all kinds", according to regulatory law expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com.
"The Human Rights Act, often the subject of bad press, was deployed by the courts - and confirmed by no less than the Supreme Court, given the EA's determination to battle on - to ensure that Mr Mott was not left without compensation," he said.
"The court considered the difficult distinction between taking or deprivation of property, which normally requires compensation, and controls on use, which are permissible without compensation. The parties continued to be at odds over which side of the line Mott's case fell on although ultimately, as the judge put it, it was 'closer to deprivation than mere control'. However, regardless of that debate, due to the way Mott had been treated compared to others and the severity of the impact on him, he had been made to shoulder an 'excessive and disproportionate' burden - and was thus entitled to compensation," he said.
Mott holds a leasehold interest in a 'putcher rank' fishery on the banks of the Severn Estuary, where he has been catching salmon as his full-time occupation since 1979. A putcher rank is an ancient fishing technique, which involves the use of conical baskets to trap adult salmon as they attempt to return from the open sea to their river of origin to spawn. According to Mott, he was catching around 600 salmon per year and earning a gross annual income of around £60,000 before the EA imposed the catch limits that were the subject of his court challenge.
In order to operate the putcher rank, Mott was required to obtain an annual licence from the EA under section 25 of the 1975 Salmon and Freshwater Fisheries Act. In 2011, the Act was amended to allow the EA to impose conditions on historical fishing methods where this was "necessary ... for the protection of any fishery". The rivers Wye and Usk, which feed into the Severn Estuary, are designated as Special Areas of Conservation under the EU's Habitats Directive because of the need to conserve their salmon stocks.
The EA had previously compensated Mott in exchange for his agreement not to operate the fishery. However, in 2012 it notified him of its intention to impose a catch limit of 30 fish that year, using its powers under the 1975 Act which did not require the payment of compensation. The limit was further cut to 23 fish in 2013, and 24 in 2014.
According to Mott, the catch limit conditions have made it "wholly uneconomic" for him to operate his fishery and have made the lease worthless. He argued that the EA's actions were an unlawful interference with his human rights. Both the High Court and the Court of Appeal agreed, ruling that it was unlawful for the EA to impose the limits "in the absence of compensation". The High Court also found that the EA had acted irrationally, although this was overturned by the Court of Appeal.
Much of the discussion in the lower courts centred on the distinction between deprivation of property, which would require payment of compensation as a breach of human rights laws, and controls on its use, which would not. However, the Supreme Court said that this distinction was irrelevant. It was a proper use of the EA's powers for it to impose limits on fishing activity for environmental protection purposes, the Supreme Court said. However, it was still required to consider whether the effect on any individual was "excessive and disproportionate".
"Against that background, I am unable to fault the judge's analysis of the applicable legal principles in this case," said Lord Carnwath, giving the unanimous judgment of the court.
"[T]he Agency had given no consideration to the particular impact on [Mott's] 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 … I would therefore uphold the decision of the courts below," he said.
The judge emphasised, however, 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".
"As the [European Court of Human Rights] 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 give weight to their assessment," he said.