ECHR AIPI

January 29th, 2016

In R (Skelmersdale Limited Partnership) v West Lancashire BC [2016] EWHC 109 (Admin) Jay J summarised the case law as follows: (1) AIPI guarantees in substance the right of property; (2) AIPI comprises three distinct rules; (3) The first, of a general nature, lays down the principle of “peaceful enjoyment of property”; (4) The second covers “deprivation of possessions” and subjects it to certain conditions; (5) The third recognizes that States are entitled, amongst other things, to control the “use of property” in accordance with the “general interest”; (6) The second and third rules, which are concerned with particular instances of interferences with the right to peaceful enjoyment of property are to be construed in the light of the general principle laid down in the first rule; (7) In a deprivation of possessions case, the infringement of the AIPI right will be justified only in “exceptional circumstances”, in the absence of payment of compensation; (8) In a control of use case, the broad question is whether a “fair balance” has been struck between (i) the private interests of the proprietor and (ii) the general public interest; (9) In the event that a fair balance has not been struck without reference to it, the presence or absence of compensation is a relevant factor; (10) The State is allowed a “wide margin of appreciation” in the field of land development and town planning; (11) The issue of “proportionality” is not hard-edged, but requires a broad judgment of where the fair balance lies; (12) The Court will intervene only if the interference is deemed to be “manifestly disproportionate”; and (12) When assessing proportionality under AIPI, a measure is not rendered disproportionate merely by reason of there being a “less intrusive way” of achieving the same objective.

James Goudie QC

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