Information Note on the Court’s case-law 128

March 2010

Depalle v. France [GC] - 34044/02

Judgment 29.3.2010 [GC]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Obligation on owners to demolish, at their own expense and without compensation, house they had lawfully purchased on maritime public land: no violation

[This summary also covers the Grand Chamber judgment i n the case of Brosset-Triboulet and Others v. France , no. 34078/02, 29 March 2010]

Facts – In the Depalle case the applicant and his wife had purchased a dwelling house in 1960 that had been partly built on land on the coast falling within the category of maritime public property. A series of decisions authorising temporary occupancy of maritime public property subject to certain conditions, which were regularly renewed up until December 1992, gave the applicants legal access to the property. The Brosset-Tr iboulet case concerns similar facts. In 1945 the applicants’ mother had acquired a dwelling house falling within the category of maritime public property. The successive occupants of the land had had the benefit of a prefectoral decision authorising occupa ncy that had been systematically renewed between September 1909 and December 1990. In September 1993 the prefect informed the parties in both cases that the entry into force of the Coastal Areas (Development, Protection and Enhancement) Act (“the Coastal A reas Act”) no longer allowed him to renew authorisation on the same terms and conditions because the Act ruled out any private use of maritime public property, including as a dwelling house. However, he proposed to enter into an agreement with them that wo uld authorise limited and strictly personal use and prohibit them from transferring or selling the land and houses and from carrying out any work on the property other than maintenance and would include an option for the State, on the expiry of the authori sation, to have the property restored to its original condition or to reuse the buildings. The parties rejected the offer and, in May 1994, applied to the Administrative Court for the prefect’s decision to be set aside. In December 1995 the prefect lodged an application with the Administrative Court citing the parties as defendants in respect of an offence of unlawful interference with the highway as they continued to unlawfully occupy public property. He also sought an order against them to restore the for eshore to its original state prior to construction of the dwelling houses, at their expense and without compensation. As a final court of appeal, the Conseil d’Etat held in March 2002 that the property in question was part of maritime public property, that the parties could not rely on any right in rem over the land in question or over the buildings and that the obligation to restore the land to its original state without any prior compensation was not a measure prohibited by Article 1 of Protocol No. 1 to the European Convention on Human Rights.

Law – Article 1 of Protocol No. 1: a) Applicability – In strictly applying the principles governing public property – which authorised only precarious and revocable private occupancy – the domestic courts had ruled out any recognition of a right in rem over the houses in favour of the applicants. The fact that the applicants had occupied them for a very long time had not had any effect on the classification of the property as inalienable and imprescriptible maritime public property. In the circumstances, and notwithstanding the fact that the houses had been acquired in good faith, as the decisions authorising occupancy had not constituted rights in rem over public property the Court doubted that they could reasonably have expected to continue having peaceful enjoyment of the property solely on the basis of the decisions authorising occupancy. All the prefectoral decisions had referred to the obligation, in the event of revocation of the decision authorising occupancy, to restore the site to its original state if so required by the authorities. However, the fact that the domestic laws of a State did not recognise a particular interest as a property right did not necessarily prevent the interest in question, in some circu mstances, from being regarded as a possession within the meaning of Article 1 of Protocol No. 1. In the present case the time that had elapsed had had the effect of vesting in the applicants a proprietary interest in peaceful enjoyment of their houses that was sufficiently established and weighty to amount to a possession.

Conclusion : Article 1 of Protocol No. 1 applicable.

b) Merits – Having regard to the principles governing this category of property, and to the fact that the demolition measure had not been implemented to date, there had not been a deprivation of possessions. The non-renewal of the decisions authorising private occu pancy of the public property, which the applicants must have anticipated would one day affect them, and the resulting order to demolish the houses could be analysed as control of the use of property in accordance with the general interest. Furthermore, the reasons given by the Prefect for refusing to renew authorisation had been based on the provisions of the Coastal Areas Act. The interference had pursued a legitimate aim that was in the general interest: to promote unrestricted access to the shore. It the refore remained to be determined whether, having regard to the applicants’ interest in keeping their houses, the order to restore the site to its original state was a means proportionate to the aim pursued. Regional planning and environmental conservation policies, where the community’s general interest was pre-eminent, conferred on the State a wide margin of appreciation. Since the acquisition by the applicants of the possessions, or possibly even since the houses had been built, the authorities had been a ware of the existence of the houses because they had been occupied on the basis of a decision specifying that the dyke had to be accessible to the public at all times. Each prefectoral decision authorising occupancy had specified the length of the authoris ation and the authorities’ right to modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring a right to claim any compensation. Furthermore, it had been specified that the permitt ee must, if required, restore the site to its original state by demolishing the constructions built on public land, including those existing on the date on which the decision had been signed. Accordingly, the applicants had always known that the decisions authorising occupancy were precarious and revocable and, therefore the authorities could not be deemed to have contributed to maintaining uncertainty regarding the legal status of the property. Admittedly, the applicants had had peaceful enjoyment of the p ossession for a long time. The Court did not, however, see any negligence on the part of the authorities, but rather tolerance of the ongoing occupancy, which had, moreover, been subject to certain rules. Accordingly, there was no evidence to support the a pplicants’ suggestion that the authorities’ responsibility for the uncertainty regarding the status of the houses had increased with the passage of time. It was not until 1986 that the applicants’ situation had changed, following the enactment of the Coast al Areas Act which had put an end to a policy of protecting coastal areas merely by applying the rules governing public property at a time when development and environmental concerns had not reached the degree witnessed today. In any event, the aforementio ned tolerance could not result in a legalisation ex post facto of the status quo. Regarding the appropriateness of the measure in terms of the general interest in protecting coastal areas, it was first and foremost for the national authorities to decide wh ich type of measures should be imposed. The refusal to renew authorisation of occupancy and the measure ordering the applicants to restore the site to its condition prior to the construction of the houses corresponded to a concern to apply the law consiste ntly and more strictly. Having regard to the appeal of the coast and the degree to which it was coveted, the need for planning control and unrestricted public access to the coast made it necessary to adopt a firmer policy of management of this part of the country. The same was true of all European coastal areas. Allowing an exemption from the law in the case of the applicants, who could not rely on acquired rights, would go against the aims of the Coastal Areas Act and undermine efforts to achieve a better organisation of the relations between private use and public use. Moreover, the applicants had refused the compromise solution and the Prefect’s proposal to continue enjoyment of the houses subject to conditions, which could have provided a solution reconc iling the competing interests and did not appear unreasonable. Lastly, having regard to the rules governing public property, and considering that the applicants could not have been unaware of the principle that no compensation was payable, which had been c learly stated in every decision issued since 1961 and 1951 respectively, the lack of compensation could not, in the Court’s view, be regarded as a measure disproportionate to control of the use of the applicants’ property, carried out in pursuit of the gen eral interest. The applicants would not bear an individual and excessive burden in the event of demolition of their houses with no compensation. Accordingly, the balance between the interests of the community and those of the applicants would not be upset.

Conclusion : no violation (thirteen votes to four).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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