European Property Rights and Wrongs - Diana Wallis MEP

para. 85). The Depalles were granted a series of temporary occupation rights,
the last agreement expiring in 1992. In total the house had been in situ for over
a hundred years, for 35 of which the Depalles had occupied as a family and by
the time it came to be demolished was worth €1.2M. Renewal was refused once
the Coastal Areas Law 1986 art 25 signalled a tougher approach to coastal ecology
and made illegal all private use of coastal land. The house was eventually
demolished without any compensation, and on the facts this was held not to be
an infringement of the owner’s right to their property.
Human rights cases often come down to balancing the public interest and the
interests of an individual property owner. The harsh decision in Depalle shows without
doubt that coastal conservation and the preservation of public access to the
foreshore will be regarded as legitimate objectives of legislation. Demolition pursued
the legitimate aim of promoting unrestricted access to the shore. Pre-eminence will
be given to the community’s general interest in environmental conservation policies,
the state being allowed a wide discretion, or in technical language a ‘margin of appreciation’.
Part of the reasoning of the Strasbourg court was the legitimacy of the
corresponding provisions in other European states, including Spain:
‘In Spain, the owners of buildings legally built and acquired before the
entry into force of Coastal Areas Law 1988, and designed for use as
a dwelling, could obtain a concession of these buildings, without any
obligation to pay a charge on the sole condition that they apply for the
concession within one year of the entry into force of the Law. In Spain
properties built before the Law came into force without a permit or concession
as required by the previous legislation will be demolished if they
cannot be legalised on public-interest grounds. Any building that was
authorised before the Law came into force but is now illegal will be demolished
on the expiry of the concession if it is located on land falling
within the category of maritime public property.’ (extract from para 53).
This case negates any prospect of the widespread use of human rights arguments
against decisions to order the demolition of illegal coastal property. Nevertheless
a few chinks of light emerge where cases may be arguable. 1) The reasoning of
the case relies heavily on the French law principle that public land is inalienable
and so title to any encroachment is void. The same would not necessarily apply
to other systems where title to public land was handled differently; in Spain land
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A European Land Law?