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