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 nery ı ld ı z v. Turkey judgment ( [GC] , no. 48939/99, ECHR 2004 - XII ) (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 applicant and hi s wife had the benefit of temporary aut h orisation s to occupy maritime public property in the département of Morbihan . Between 19 6 1 and 19 91 authorisation was renewed on several occasions. I can accept that, up until 31 December 1992 , when the last agreement for temporary occupa tion expired (see paragraph 1 4 of the judgment), the applicant and hi s wife 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 Article 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 6 3 of the judgment ). Once the last agreement authorising temporary occupa tion of the site had e xpired, however, the applicant and his wife 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 67 of the judgment ). The Court conclude d from this that the applicant and his wife 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 8 6 ).

5. I find it difficult to agree with the conclusion reached by the majority in paragraph 68 of the judgment – which , to my mind, partly conflict s w ith the consid e rations set out in paragraph s 6 2 to 67 – according to which “ [ i ] n the present case the time that elapsed had the effect of vesting in the applicant 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 applicant and his wife ( see par agraph 6 1 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 A rticle 1 of Protocol No. 1 is not applicable in situations similar to that of the applicant and his wife .

JOINT PARTLY DISSENTING OPINION OF JUDGE S BRATZA, VAJIĆ, DAV Í D TH Ó R 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 in the present case. In our view the order that the applicant should restore the land on which his house is built to the state it was in prior to its construction, by abandoning and demolishing the house which has stood on the land for at least 120 years and which has been owned and maintained by him and his wife since 1960, amounted to a disproportionate and unjustified interference with the applicant ’ s “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 applicant ’ s loss of his 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 of Protocol No. 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 (“the 1986 Act”) and earlier legislation relating to the use of maritime public property and the restoration of the natural state of the seashore. Nevertheless, as the Court has consistently emphasise d, 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 applicant, 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 applicant ’ s rights must be regarded as in the general interest. As appears from the decision of the p refect 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. 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 applicant was 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 applicant of the measures if implemented is exceptionally serious – a requirement to leave and demolish, without compensation, a house which he purchased in good faith, in which he has lawfully resided for 50 years and in which he has invested over the years time and money, as well as being responsible for paying the relevant taxes and duties. It is true that the applicant has always been aware that his continued possession and occupation of the house was precarious, the decisions authorising the temporary occupation of the dyke and house, from the date of purchase, expressly reserving to the authorities the right to modify or withdraw the authorisation should they deem it necessary on any ground, without the permittee acquiring a right to claim damages or compensation in that regard. The decisions also made clear that, if required, the permittee would be obliged to restore the site to its original state by demolishing any constructions built on the public property, including those existing on the date of the decision, and that should he fail to comply with that obligation, the authorities would do so of their own motion and at his expense. However, it is also true that the authorisation had been consistently renewed by the authorities, after the applicant had purchased the house, in the years 1961, 1975, 1986 and 1991 without the applicant being given any reason to believe that the authorisation would not continue to be granted for a house which had been in existence from the 1880s. It is particularly significant that the authorisations of 1986 and 1991 were issued after the coming into force of the 1986 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 applicant ’ s house was built, and the house itself, were constructed a century 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 subsequent m inisterial 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.

It is particularly striking that, although the house was originally built despite a decision of the p refect of 31 May 1856 refusing an application for a building permit, the p refect ’ s decision of 5 December 1889 expressly authorised the then owner, Mr A., in consideration of payment of a charge, to retain on maritime public property both the dyke and the house built on it. Moreover, in 1961 the applicant himself was expressly permitted to extend the dyke and a public right of way was granted along its seaward edge.

8. Secondly, as noted above, decisions authorising occupation of the property had been issued successively for over a century. The Government argue that authorisation had been repeatedly renewed because this had been compatible with the designated use of the public land for fishing and navigation. It is argued that the position had changed with the enactment of the 1986 Act, which established the principle that there should be no interference with the natural state of the seashore and provided for enhanced public access to that public property. It is further argued that the refusal to renew the authorisation was entirely justified, as being consistent with the careful and progressive implementation of the 1986 Act in so far as it called into question a situation that had gone on for a very long time.

We do not find this argument to be convincing. Even if it is correct, as stated in the judgment ( paragraph 86), that the exceptional length of the occupancy should be viewed in the context at the relevant time, when “development and environmental concerns had not yet reached the degree witnessed today” and that “ [ i ] t was not until 1986 that the applicant ’ s situation changed”, it is notable that three authorisations were granted after the m inisterial circular of 1973 had been issued and that the last two of these were 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 authorit ies ’ 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. This lack of coherence is reinforced by the events following a fire in 2005 when the applicant applied for a building permit to restore the house to its previous condition. By a decision of 5 September 2005, he was issued with a building permit after a favourable opinion given by an architect from the Architectes des b âtiments de France under the 1986 Act; however, the permit was subsequently revoked at the request of the p refect on the ground that it was illegal because it had been issued in contravention of the rules of inalienability and imprescriptibility of public property. In this respect, we reiterate 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 [GC], no. 33202/96, § 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, there is nothing in the decisions of the p refect or in the judgments of the domestic courts to cast doubt on the applicant ’ s submission that the house had become perfectly integrated into the local landscape and was part of the national heritage.

The sole ground for the decision was, instead, that the house which was privately occupied had been constructed on maritime public land and that such private use was ruled out by the law. We have difficulty in finding that this ground, which had persisted since the house was first erected in the nineteenth century, was sufficient to justify what the judgment correctly describes as “a radical interference” with the applicant ’ s possessions, particularly in a case where the p refect himself had initially envisaged extending the authorisations for occupancy of the house.

10. Fourthly, in so far as the restriction of public access to the fore shore may have been one consideration in the decision of the authorities, we are struck by the fact that measures less radical than demolition of the house do not appear to have been considered. Reliance is placed by the majority on the fact that the applicant refused the compromise solution in the p refect ’ s proposal that he should continue in occupation of the house subject to certain conditions. We acknowledge that the p refect ’ 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 applicant ’ s continued enjoyment of his 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, under the proposal the continued ownership and occupancy of the house would not survive the life of the applicant himself, whose family members would be deprived of a very 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 applicant was required to bear an individual and excessive burden and that his rights under Article 1 of Protocol No. 1 were accordingly violated.