CONCURRING OPINION OF JUDGE CASADEVALL

( Translation )

1. I voted with the majority in favour of finding that there had not been a violation of A rticle 1 of Protocol No. 1. However, for similar reasons, mutatis mutandis , to those expressed in my dissenting opinion a nnex ed to the Ö neryildiz v. Turkey judgment (referred to in the present judgment), I would have preferred the Court to determine t he matter in issue at an earlier stage of its reasoning and to conclude that Article 1 of Protocol No. 1 was inapplicable in this case .

2. The applicants had the benefit of temporary aut h orisation s to occupy maritime public property in the Morbihan Bay . Between 1951 and 1986 authorisation was renewed on several occasions. I can accept that, up until 31 December 1990 , when the last agreement for temporary occupa tion expired (see paragraph 15 of the judgment), the applicants could legitimately claim that they had a “ possession ” within the meaning of Article 1 of Protocol No. 1 and the Court ' s case-law , but I consider that they could no longer do so after that date.

3. Admittedly, the concept of “ possessions ” under A rticle 1 of Protocol No. 1 has an autonomous meaning and certain interests constituting assets can be regarded a s “possessions” for the purposes of this provision. However, a legitimate expectation of being able to continue having peaceful enjoyment of a “ possession ” must have a “sufficient basis in national law” ( see paragraph 66 of the judgment ). Once the last agreement authorising temporary occupa tion of the site had e xpired, however, the applicants did not have any sufficient basis in French law .

4. Indeed, the prefect ' s decisions, which were never disputed, indicated the length of the temporary authorisation in clear and unambiguous terms, and stipulated – in accordance with the legislation in force – that the authorities reserved the right to modify or withdraw the aut h orisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring a right to claim any compensation or dama ges in that regard , and referred to the obligation to restore the site to its original state in the event of revocation of the decision authorising occupa tion if required to do so by the authorities ( see par agraph 70 of the judgment ). The Court conclude d from this that the applicants had always known that the decisions authorising occupa tion were precar ious and revocable and considered that the authorities could not therefore be deemed to have contributed to maintaining uncertainty regarding the legal status of the “possession” ( see par agraph 89).

5. I find it difficult to agree with the conclusion reached by the majority in paragraph 71 of the judgment – which , to my mind, partly conflict s w ith the consid e rations set out in paragraph s 65 to 70 – according to which “in the present case the time that elapsed had the effect of vesting in the applicants a proprietary interest in peaceful enjoyment of the house ... ” . Alas, as stated several times in the judgment, public property is not only inalienable but also imprescriptible (protection against adverse possession under private law ), from which it follows that the passage of time, however long, can have no legal consequences . I agree with the Government ' s submission that the impossibility of acquiring property by adverse possession invalidates the argument relating to the effect of the length of o ccupa tion of the site; accordingly, n o legitimate expectation of being able to continue enjoying the “possession” arose in favour of the applicants ( see par agraph 64 of the judgment ).

6. Lastly, I consider that it emerges from most of the arguments set forth in the judgment in favour of finding no violation that Article 1 of Protocol No. 1 is not applicable in situations similar to that of the applicants.

JOINT DISSENTING OPINION OF JUDGE S BRATZA, VAJIĆ, DAVID THÒR BJÖRGVINSSON AND KALAYDJIEVA

1. We are unable to agree with the majority of the Court that there has been no violation of Article 1 of Protocol No. 1 to the Convention in the present case. In our view the requirement that the applicants should restore the land on which their house is built to its original state by abandoning and demolishing their house which has stood on the land for over a century and which has been owned and maintained by members of their family since 1921 and by immediate family members since 1945 amounted to a disproportionate and unjustified interference with the applicants ' “possessions” for the purposes of that Article.

2. We share the view of the majority of the Court that, despite the fact that the order to demolish the house will result in the applicants ' loss of their possessions, the case is to be viewed as one involving not a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1 but rather, a control of use of property within the second paragraph of the Article, the order being designed to give effect to planning restrictions contained in the Coastal Areas Act 1986 relating to the use of maritime public property and the restoration of the natural state of the seashore. Nevertheless, as the Court has consistently emphasised, the three “rules” in Article 1 are not to be seen as watertight or unconnected rules, all three rules importing a requirement of proportionality and the necessity of striking a fair balance between the demands of the community as a whole and the protection of the rights and interests of the individual. Moreover, the fact that the measures of control applied in the present case would have particularly serious consequences for the applicants, in resulting in the loss of a valuable asset, is a factor which must be weighed in the balance even if the case is to be examined under the second paragraph of the Article.

3. We also agree with the majority that the aim of the interference with the applicants ' rights must be regarded as in the general interest. As appears from the decision of the Prefect and the judgments of the domestic courts, the primary aim of the measures was to remove a permanent structure on maritime public property so as to restore the natural state of the seashore and promote unrestricted access to the shore. In this respect the order may, in a broad sense, be said also to serve the interests of the environment.

4. The central question is whether the measures adopted in the present case were proportionate to the legitimate aim and preserved a fair balance between the competing interests or whether the applicants were required to bear an individual and excessive burden. It is on this point that we part company with the majority.

5. The impact on the applicants of the measures if implemented is exceptionally serious – a requirement to leave and demolish, without compensation, a house in which they have lawfully resided as a family for very many years and in which they have invested over the years time and money as well as being responsible for paying the relevant taxes and duties. It is true that the applicants, or their predecessors in title, have always been aware that their continued possession and occupation of the house was precarious, the decisions authorising the occupation of the dyke or house, from at least 1951 onwards, expressly reserving to the authorities the right to modify or withdraw the authorisation should they deem it necessary on any ground, without the occupants acquiring a right to claim any compensation or damages in that regard. The decisions also made clear that, if required, the occupants would be obliged to restore the site to its original state by demolishing any buildings on the public property and that should they fail to comply with that obligation, the authorities would do so of their own motion and at the occupants ' expense. However, it is also true that the authorisation had been consistently renewed by the authorities, after the applicants ' mother had acquired the house by inheritance, in the years 1951, 1967, 1977, 1984 and 1986 without the applicants being given any reason to believe that the authorisation would not continue to be granted for a house which had been in existence since the beginning of the century. It is particularly significant that the authorisation of 1986 appears to have been issued after the coming into force of the Coastal Areas Act, the provisions of which were relied on by the authorities as preventing the further renewal of the authorisation in 1993.

6. The interests of the community on the other side of the scale also carry weight. We accept that States must in principle be entitled to change policies which have hitherto been followed in accordance with new priorities, and environmental conservation is undeniably one such priority. The enactment of the 1986 Act was intended to give effect to growing concern about damage to the environment resulting from developments of the coastline. We can also agree with the majority that it is first and foremost for the national authorities to decide which type of measures should be imposed to protect coastal areas.

7. There are, nevertheless, specific features of the present case which lead us to find that the measures taken by the national authorities did not strike a fair balance.

In the first place, the dyke on which the applicants ' house was built, and the house itself, were constructed very many years before the 1986 Act, which itself drew a distinction between works which had been carried out before and after the coming into effect of the Act, the former continuing to be governed by previous legislation. Both the dyke and the house were likewise constructed long before the Code of State Property 1957 and the Ministerial circular of 1973 which prohibited the grant of concessions to carry out works on the seashore and to occupy maritime public property, a prohibition which was later confirmed by the 1986 Act.

8. Secondly, as noted above, decisions authorising occupation of the property had been issued successively for at least half a century. The Government argue that the reason for allowing the house to remain standing after the authorities had discovered its existence in 1967 was that, at that time, it was still compatible with the designated use of the property. We find it difficult to accept that the authorities were unaware of the existence of the house until 1967. More importantly, even if it is correct, as stated in the judgment (§ 89), that certain of the authorisations were issued at a time when “development and environmental concerns had not reached the degree witnessed today” and that “it was not until 1986 that the applicants ' situation changed”, it is notable that three authorisations were granted after the Ministerial circular of 1973 had been issued and the last of these was granted after the coming into effect of the 1986 Act itself. The majority of the Court have found that this was not an example of negligence on the part of the authorities but rather of tolerance of the ongoing occupancy of the house. It is said that this offers no support to the applicants ' suggestion that the authority ' s responsibility for the uncertainty regarding the status of the house increased with the passage of time. While we do not find it necessary to characterise the actions of the authorities as negligence, we attach weight to the lack of coherence of those actions which, to use the words of the Government Commissioner, allowed occupants of public property to nurture for almost a century the hope that they would not be brutally compelled to demolish their property. In this respect, we recall the Court ' s finding that, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency (see Beyeler v. Italy [G C], no. 33202/96, judgment of 5 January 2000, § 120, ECHR 2000-I).

9. Thirdly, we note that the principal ground for the refusal to renew the authorisations and to require demolition of the house was not related to any environmental damage caused by the house or to the fact that the house was incompatible with the coastal landscape. On the contrary, the applicants ' submission that the house had become perfectly integrated into the local landscape and was part of the national heritage is confirmed by the letter of 6 August 2002 from the Director of the Department of Culture and Legal and Political Affairs, in which it was noted that had an inventory been carried out in the Vannes-Ouest district at that time, the applicants ' house and others in the same situation would have been listed as historical monuments and considered as part of the region ' s cultural heritage.

The grounds for the decision were, instead, that the house which was privately occupied had been constructed on public land and that it restricted public access to the foreshore. We have difficulty in finding that either of these two grounds, which had persisted since the house was first erected at the beginning of the century, were sufficient to justify what the judgment correctly describes as “a radical interference” with the applicants ' possessions.

10. Fourthly, we are struck by the fact that measures less radical than demolition of the house do not appear to have been considered by the authorities in order to achieve the aim of facilitating public access to the foreshore. Reliance is placed by the majority on the fact that the applicants ' mother refused the compromise solution in the Prefect ' s proposal that she should continue in occupation of the house subject to certain conditions. We acknowledge that the Prefect ' s offer went some way towards redressing the balance and that, to use the words of the Government Commissioner, the offer was at least preferable to the “drastic solution” of a straightforward demolition order. However, in the end we have concluded that the proposal was not such as to restore a fair balance, since it imposed substantially greater restrictions on the applicants ' continued enjoyment of their property by not only confining the use of the house to strictly personal use and prohibiting any sale or transfer of it or any work other than maintenance work but by reserving to the State an option on the expiry of the authorisation to have the land restored to its original state or to reuse the building. In short, it appears that under the proposal the ownership and occupancy of the house would continue only during the lifetime of the applicants ' mother herself and that family members would be deprived of their valuable possession which would pass to the authorities without any compensation being paid. We note, in this regard, that the very fact that under the proposal the State reserved the right to preserve and reuse the house on the expiry of any authorisation is itself difficult to reconcile with any compelling need to restore the natural state of the shoreline.

11. For these reasons, it is our view that the applicants were required to bear an individual and excessive burden and that their rights under Article 1 of Protocol No. 1 were accordingly violated.