The Supreme Court held that catch limits on Mr Mott’s historic Severn Estuary salmon fishery unlawfully interfered with his right to peaceful enjoyment of possessions unless compensation was paid. The limits were an environmental control, not a formal expropriation, but they removed at least 95 per cent of the commercial benefit of his lease and fell far more heavily on him than on smaller fisheries used mainly for leisure. The Environment Agency’s appeal was dismissed, although the Court stressed that the facts were exceptional and that such controls do not generally require compensation.
The fishery and the catch limits
Mr Mott had a lease of a putcher-rank fishery at Lydney, on the north bank of the Severn Estuary. Putchers are conical baskets used to trap adult salmon returning from the sea to spawn. He had worked the fishery since 1975 and, on his evidence, full-time since 1979. He claimed that, before the limits, his average catch was about 600 salmon a year, worth about £100 each and producing about £60,000 gross.
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The right derived from a Certificate of Privilege dated 14 May 1866 and owned by the Lydney Park Estate. The 20-year lease, granted jointly to Mr Mott and Mr David Merrett and expiring on 31 March 2018, allowed two stop nets and 650 putchers. The rent was a fish rent equivalent to 65 pounds in weight of salmon, plus a monetary rent of £276. The tenants had to operate the fishery each season unless that was impossible, and could not assign it except, on death or disability and with the landlord’s consent, to a family member.
An annual licence was required under section 25 of the Salmon and Freshwater Fisheries Act 1975. The season ran from 1 June to 15 August. From 1 January 2011, following amendment by the Marine and Coastal Access Act 2009, the Agency could impose a catch limit on a historic installation where it considered that necessary for the protection of any fishery.
Policy was to phase out mixed-stock fisheries and, so far as possible, exploit salmon only where the stock came from a single river. The Agency treated the estuary fisheries as taking mixed stock, including fish bound for the Wye, Usk and other rivers. The Wye and Usk were Special Areas of Conservation, designated partly to conserve salmon, and their stocks had been categorised as unfavourable or at risk. Together with related designations, the estuary formed the Severn Estuary European Marine Site, for which salmon was a qualifying feature.
Attempts to buy out the right failed, although the Agency paid the tenants not to fish in some seasons, including £30,000 for 2004 and 2010 and £35,000 for 2011. In 2012 it relied on a University of Exeter report and a Habitats Regulations assessment. The assessment treated unconstrained catches as threatening the River Wye, and HHJ Cooke later noted that the controlling factor was the number of salmon returning there to spawn. Mr Mott disputed the scientific evidence, but that dispute was not before the Supreme Court.
On 1 June 2012 he was limited to 30 salmon. The figure was based on the lowest catch of any historic installation fishery that had sought a licence in the previous ten years, with some increase intended to reduce the risk of fewer licences and loss of heritage. The decisions under challenge then limited him to 23 salmon in 2013 and 24 in 2014. His 650 putchers thus received the same allocation as much smaller fisheries, some operating about 50 baskets, which he said were hobbies rather than livelihoods.
The claims below
Mr Mott sought judicial review, alleging irrationality and a breach of the European Convention on Human Rights. His case was that the conditions made the fishery wholly uneconomic and the lease worthless. HHJ Cooke upheld both grounds. The Court of Appeal allowed the Agency’s appeal on irrationality, but declared that all three decisions unlawfully interfered with Article 1 of the First Protocol in the absence of compensation. Only that issue reached the Supreme Court. It was accepted that the leased right to fish was a possession.
Why compensation was required
Article 1 protects peaceful enjoyment of possessions. It permits deprivation in the public interest and control of the use of property in the general interest. Deprivation normally requires compensation; control generally does not, even where it causes serious financial loss. The distinction is not clear-cut, and the court must still decide whether the individual has borne a disproportionate and excessive burden.
The Agency argued that this was control rather than expropriation: Mr Mott still had a right to fish, environmental protection had special importance, and public funds should not compensate activity said to damage the environment. Mr Mott argued that the conditions nullified the practical use of the lease. He also pointed to the Agency’s earlier payments and to section 26 of the 1975 Act, which allows compensation where a net-fishing restriction would prevent someone wholly dependent on fishing from earning a livelihood.
Lord Carnwath, with whom Lady Hale, Lord Kerr, Lady Black and Lord Briggs agreed, said that the distinction was not crucial. As the Court of Appeal had found, the restrictions were a proper control of fishing in the interests of environmental protection. No case had been cited in which such action became expropriation merely because of its extreme effect on one person. That effect nevertheless had to be proportionate, and the importance of environmental protection did not remove the possible need for compensation.
The Court accepted the judge’s analysis. The conditions eliminated at least 95 per cent of the benefit of the right and were closer to deprivation than to mere control. There was no evidence that the Agency had meaningfully considered the effect on Mr Mott’s livelihood. Levelling every permitted catch towards the previous lowest catch also placed by far the greatest burden on him, rather than on those using smaller fisheries for leisure. Lord Carnwath added that any residual value for leisure use was doubtful because the lease so strictly limited assignment.
The Court upheld the result as exceptional because of the severity of the impact and its disproportion compared with others. National authorities have a wide discretion in imposing necessary environmental controls, and Article 1 gives no general expectation of compensation. Where, unlike here, the authorities have properly considered the fair balance, courts should give weight to their assessment.
Verdict: The Court unanimously dismissed the Environment Agency’s appeal. In Mr Mott’s exceptional circumstances the catch limits imposed in 2012–14 were unlawful without compensation. The Court did not determine an amount.
