EHRM, 29-03-2010, nr. 34044/02

The idea that the foreshore is ‘common property’, that is, cannot be appropriated for private use and is managed by the public authorities, dates back to Roman times (Institutiones Justiniani, Book II, Title I De rerum divisione), when even then a permit was necessary in order to build on the seashore. Colbert's Ordinance of the Marine of August 1681 codified the principle and up until recently was still the legal basis for the State's management of maritime public property. In addition to defining what constituted the ‘seashore and foreshore’, it laid down the applicable rules: ‘No one shall build on the foreshore, set stakes in the ground or erect any construction that may interfere with navigation, on pain of demolition of the constructions, confiscation of the materials and discretionary fines’. At the time of the Revolution, the idea developed that maritime public property was governed by the Government in the interest of the nation, and not merely as part of the heritage that used to belong to the Crown and now belongs to the State. The management of maritime public property is still largely guided by this principle today. Over and above the idea of State ownership of such property, the conservation and management of it are more a matter of implementation of a policy regarding its use than the exercise of the owner's ‘civil’ rights. The prefect has a major role in the protection of maritime public property. He is the authority who, generally, governs the use of the property at local level, decides whether or not to allow private occupancy and protects the integrity of the property by prosecuting offenders (source: www.mer.gouv.fr, consulted on 3 February 2010).

Colbert's Ordinance of the Marine was definitively repealed in 2006. Since 1 July 2006 the General Code of Property owned by Public Bodies (Code general de la propriété des personnes publiques — ‘the CGPPP’) has replaced the Code of State Property (dating from 1957). It restructures the law governing State-owned land and public bodies and combines the rules governing maritime public property into a whole, including provisions relating to the environment in particular.

Maritime public property, determined on the basis of natural phenomena, lies between the highest point of the shore, that is, up to the high tide mark under normal meteorological conditions (CE Ass, Kreitmann, 12 October 1973) and the boundary of the territorial waters, seaward. Under Article L. 2111-4 of the CGPPP, ‘State natural maritime public property shall comprise:

The use of maritime public property may be collective or private. Collective use which allows all citizens to benefit from public property (navigation on watercourses, beaches) is freely exercisable, equally available to all and free of charge. However, the principle that use is free of charge has not been expressly incorporated into the CGPPP because it is subject to numerous exceptions.

Private occupancy must be compatible or in conformity with the designated use of the public property. Unlike collective use, it is subject to authorisation, issued personally, and a charge and is of a precarious nature.

Article L. 28 of the Code of State Property (Article L. 2122-1 of the CGPPP) provided that

[Article A 26 specified that authorisation was revocable without compensation].

According to the Conseil d'Etat, ‘whilst the authorities may, as part of their management powers, authorise — provisionally and on the conditions provided for by the rules in force — private occupancy of the said land, that authorisation cannot legally be granted unless, having regard to the requirements of the general interest, it is compatible with the designated use of the land that the public are normally entitled to exercise, and with the obligation incumbent on the authorities to conserve public land’ (CE, Commune de Saint-Brévin-les-Pins, 3 May 1963).

The precariousness of these authorisations derives from the principle of inalienability, according to which the protection — and accordingly the disposal — of public land is vested in the authorities. According to the case-law, ‘any authorisation to occupy public land is precarious and revocable. Consequently, the fact — assuming it is made out — that, prior to adoption of the decision being challenged, I. had been granted authorisation to occupy the part of common public property … does not affect the lawfulness of the mayor's decision requesting him to demolish the buildings he had erected and restore the public land to its original state …’ (CE, Isas, 29 March 2000). It also states very clearly that those to whom authorisation has been granted have not thereby ‘acquired rights’ to renewal of the authorisation (CE, Helie, 14 October 1991).

The conditions of occupation of public property are determined either in unilateral concessions granted by the authorities (of the type referred to above in Article L. 28 of the Code of State Property) or in contracts signed with the occupant. The latter are called concessions to occupy public land, which — on maritime public property — may be a beach concession or a concession to build a dyke. By means of this concession, the State authorises the concessionaire to carry out works on the foreshore by which land is removed from the action of the tide. In respect of natural maritime public property an arrangement was established in 1807, traditionally called a concession to build a dyke and by which ownership was transferred (former Article L. 64 of the Code of State Property): the concessionaire was authorised to drain land, which, once removed from the action of the tide, no longer fell within the definition of natural maritime public property and could therefore be reclassified as private property and transferred by the State. That arrangement, which was originally used to build agricultural polders, has more recently been used for property developments in the form of marinas, reclaimed from the sea. Following a reaction to what was perceived as a privatisation of the shore, a circular was issued in 1973 prohibiting such arrangements — a prohibition later confirmed by the Coastal Areas Act, which imposes a broader prohibition on any interference with the natural state of the shore. It is now no longer possible to build marinas or polders by means of concessions to build dykes by which ownership is transferred. This arrangement can now apply only to past draining works and is the sole means of legalising these (source: www.mer.gouv.fr, consulted on 3 February 2010).

The Court reiterates that the concept of ‘possessions’ referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as ‘property rights’, and thus as ‘possessions’ for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II;Öneryıldız, cited above, § 124; and Hamer, cited above, § 75).

The concept of ‘possessions’ is not limited to ‘existing possessions’ but may also cover assets, including claims, in respect of which the applicant can argue that he has at least a reasonable and legitimate expectation of obtaining effective enjoyment of a property right (see Hamer, cited above, § 75). A legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a ‘sufficient basis in national law’ (see Kopecky v. Slovakia, no. 44912/98, § 52, ECHR 2004-IX).

Generally speaking, the imprescriptibility and inalienability of public land have not prevented the Court from concluding that ‘possessions’ within the meaning of this provision were at stake (see Öneryıldız, cited above; N.A. and Others v. Turkey, no. 37451/97, ECHR 2005-X; Tuncay v. Turkey, no. 1250/02, 12 December 2006;Köktepe v. Turkey, no. 785/03, 2 July 2008; Turgut and Others v. Turkey, no. 1411/03, 8 July 2008; and Şatır v. Turkey, no. 36192/03, 10 March 2009). However, in those cases, except for the case of Öneryıldız, the applicants' property titles were not disputable under the domestic law because the applicants could legitimately consider themselves to be ‘legally secure’ in respect of the validity of those titles before they were annulled in favour of the Treasury (see Turgut and Others, cited above, § 89, and Şatir, cited above, § 32).

In the instant case it was not disputed before the Court that the plot of land on which the house was built belonged to the category of maritime public property. What is in dispute is the legal consequences of the deed of sale of 1960 and of the successive decisions authorising occupancy of the house.

The Court observes that the Administrative Court found that ‘[the applicant] ha[d] full title to the dwelling house occupied by [him] (see paragraph 24 above). However, in strictly applying the principles governing public property — which authorise only precarious and revocable private occupancy — the other domestic courts ruled out any recognition of a right in rem over the house in favour of the applicant. The fact that he had occupied the house for a very long time did not, in their opinion, have any effect on the classification of the property as inalienable and imprescriptible maritime public property (see paragraph 26 above).

In the circumstances, and notwithstanding the fact that the house was purchased in good faith, as the decisions authorising occupancy did not constitute rights in rem over public property — a fact of which the applicant could not have been unaware, just as he could not have been unaware of the consequences of that for his rights over the house — (see, by contrast, Z.A.N.T.E. - Marathonisi A.E. v. Greece, no. 14216/03, § 53, 6 December 2007), the Court doubts that he could reasonably have expected to continue having peaceful enjoyment of the property solely on the basis of the decisions authorising occupancy (see, mutatis mutandis, Özden v. Turkey (no. 1), no. 11841/02, 3 May 2007, §§ 28–30, and Gündüz v. Turkey (dec.), no. 50253/07, 18 October 2007). It observes in this connection that all the prefectoral decisions referred to the obligation, in the event of revocation of the decision authorising occupancy, to restore the site to its original state if required to do so by the authorities (see paragraph 14 above).

However, the Court would reiterate that the fact that the domestic laws of a State do not recognise a particular interest as a ‘right’ or even a ‘property right’ does not necessarily prevent the interest in question, in some circumstances, from being regarded as a ‘possession’ within the meaning of Article 1 of Protocol No. 1. In the present case the time that elapsed had the effect of vesting in the applicant a proprietary interest in peaceful enjoyment of the house that was sufficiently established and weighty to amount to a ‘possession’ within the meaning of the rule expressed in the first sentence of Article 1 of Protocol No. 1, which is therefore applicable to the complaint under consideration (see, mutatis mutandis, Hamer, cited above, § 76, and Öneryildiz, cited above, § 129).

The Court reiterates that, according to its case-law, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see, inter alia, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98): the first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Bruncrona v. Finland, no. 41673/98, §§ 65–69, 16 November 2004, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).

Regarding whether or not there has been an interference, the Court reiterates that, in determining whether there has been a deprivation of possessions within the second ‘rule’, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are ‘practical and effective’, it has to be ascertained whether the situation amounted to a de facto expropriation (see Brumărescu v. Romania [GC], no. 28342/95, § 76, ECHR 1999-VII, and Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 63 and 69–74, Series A no. 52).

The Court observes that it is not disputed that the land on which the house was built is classified as public property. Having regard to the principles governing this category of property, and to the fact that the demolition measure has not been implemented to date, the Court is of the view that there has not been a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Saliba v. Malta, no. 4251/02, §§ 34–35, 8 November 2005; by contrast, Allard v. Sweden, no. 35179/97, § 50, 24 June 2003; and N.A. and Others, cited above, §§ 31 and 38).

The Court considers that the non-renewal of the decisions authorising private occupancy of the public property, which the applicant must have anticipated would one day affect him, and the resulting order to demolish the house can be analysed as control of the use of property in accordance with the general interest. Indeed, the rules governing public property, in so far as they designate it as being for public use, fall into this category. Furthermore, the reasons given by the Prefect for refusing to renew authorisation were based on the provisions of the Coastal Areas Act relating to the protection of the natural state of the seashore (see, mutatis mutandis, Hamer, cited above, § 77).

The Court cannot agree with the applicant's submission that the aim of the interference was not in the general interest, namely, the protection of the property's designation as public property and of the environment. It accepts that the domestic courts analysed the interference with the property in question only from the standpoint of its classification as public property. It observes, further, that by issuing successive decisions authorising occupancy, the State de facto weakened the protection of the property's designation as land for the benefit of the public. However, it is since the enactment of the Coastal Areas Act — section 1 of which provides that ‘the coast is a geographical entity that requires a specific development, conservation and enhancement policy’ — that authorisations have no longer been renewed, with the aim of protecting the seashore and more generally the environment. The Court reiterates that environmental conservation, which in today's society is an increasingly important consideration (see Fredin v. Sweden (no. 1), 18 February 1991, § 48, Series A no. 192), has become a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities. The Court has stressed this point a number of times with regard to the protection of the countryside and forests (see Turgut and Others, cited above, § 90; Köktepe, cited above, § 87; andŞatir, cited above, § 33). The protection of coastal areas, and in particular beaches, which are ‘a public area open to all’, is another example (see N.A. and Others, cited above, § 40) of an area where an appropriate planning policy is required. The Court therefore considers that the interference pursued a legitimate aim that was in the general interest: to promote unrestricted access to the shore, the importance of which has been clearly established (see paragraphs 46 to 49 and 51 and 54 above).

It therefore remains to be determined whether, having regard to the applicant's interest in keeping the house, the order to restore the site to its original state is a means proportionate to the aim pursued.

According to well-established case-law, the second paragraph of Article 1 of Protocol No.1 is to be read in the light of the principle enunciated in the first sentence. Consequently, an interference must achieve a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999-III). The requisite balance will not be achieved if the person concerned has had to bear an individual and excessive burden.

The Court has, moreover, often reiterated that regional planning and environmental conservation policies, where the community's general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (see, mutatis mutandis, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 70, ECHR 2004-III; Alatulkkila and Others v. Finland, no. 33538/96, § 67, 28 July 2005; Valico S.r.l. v. Italy (dec.), no. 70074/01, ECHR 2006-III; andLars and Astrid Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008).

The Court observes that the applicant did not build the house himself but purchased it by notarial deed in 1960 (see paragraphs 9 and 13 above). Since then he has occupied and maintained the house, and paid the taxes and charges on it. The Court also observes that the house was apparently built over a century ago on public land drained for that purpose without any concession authorising the construction (see paragraph 24 above). In the Court's view, the question of whether the house was legally built should not be a matter for consideration in the present case. In any event the alleged illegality of the building should not be held against the applicant, particularly as it is not disputed that he acquired his ‘possession’ in good faith. His situation is therefore clearly different from that of an individual who has knowingly erected a building without a permit (see, by contrast,Öneryıldız; Saliba; and Hamer, cited above). The house in question is not therefore comparable with those that have recently been illegally built along the coast.

At all events, since the applicant purchased the ‘possession’, or possibly even since it was built, the authorities have been aware of the existence of the house because it has been occupied on the basis of a decision authorising occupancy which specified that ‘the dyke cannot interfere in any way with navigation rights … or maritime coastal traffic on condition that it is accessible to the public at all times’. Each prefectoral decision authorising occupancy specified the length of the authorisation and, in accordance with former Article A 26 of the Code of State Property, that the authorities could modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring any right to claim compensation. Furthermore, it was specified that the permittee must, if required, restore the site to its original state by demolishing the constructions built on the public property, including those existing on the date on which the decision was signed. The Court concludes from this that the applicant had always known that the decisions authorising occupancy were precarious and revocable and considers that the authorities cannot therefore be deemed to have contributed to maintaining uncertainty regarding the legal status of the ‘possession’ (see, by contrast, Beyeler v. Italy [GC], no. 33202/96, § 119, ECHR 2000-I).

Admittedly, the applicant has had peaceful enjoyment of the ‘possession’ for a long time. The Court does not, however, see any negligence on the part of the authorities, but rather tolerance of the ongoing occupancy, which has, moreover, been subject to certain rules. Accordingly, there is no evidence to support the applicant's suggestion that the authorities' responsibility for the uncertainty regarding the status of the house increased with the passage of time (see paragraph 60 above). The exceptional length of the occupancy and certain hesitations on the part of the authorities (see paragraphs 14 and 29 above) should be viewed in the context at the relevant time, when development and environmental concerns had not yet reached the degree witnessed today. It was not until 1986 that the applicant's situation changed, following the enactment of the Coastal Areas Act which put an end to a policy of protecting coastal areas merely by applying the rules governing public property. In any event, the aforementioned tolerance could not result in a legalisation ex post facto of the status quo.

The Court notes the applicant's submission that the measure was not appropriate to the general-interest aim of protecting coastal areas and that the house was perfectly integrated into the landscape, was even part of the national heritage and did not impede access to the shore. The Court reiterates in this connection, however, that it is first and foremost for the national authorities to decide which type of measures should be imposed to protect coastal areas. These will depend on urban and regional planning policies, which are, by definition, evolutive, and are, par excellence, spheres in which the State intervenes, particularly through control of property in the general or public interest (see Gorraiz Lizarraga and Others, cited above, § 70, and Galtiéri v. Italy (dec.), no. 72864/01, 24 January 2006).

It goes without saying that after such a long period of time demolition would amount to a radical interference with the applicant's ‘possession’. It is true that in the past the authorities were perhaps less strict about private occupancy of public land. Furthermore, prior to the Coastal Areas Act, the applicant did not request a concession to build a dyke at a time when he could perhaps still have done so. However, the State started reacting as early as 1973 to the risk of public property being used for private ends (see paragraph 43 above).

The refusal to renew authorisation of occupancy and the measure ordering the applicant to restore the site to its condition prior to the construction of the house correspond to a concern to apply the law consistently and more strictly, having regard to the increasing need to protect coastal areas and their use by the public, but also to ensure compliance with planning regulations. Having regard to the appeal of the coast and the degree to which it is coveted, the need for planning control and unrestricted public access to the coast makes it necessary to adopt a firmer policy of management of this part of the country. The same is true of all European coastal areas.

Allowing an exemption from the law in the case of the applicant, who cannot rely on acquired rights, would go against the aims of the Coastal Areas Act (see paragraphs 45 to 49 above) and undermine efforts to achieve a better organisation of the relations between private use and public use (see paragraph 50 above). Moreover, the applicant has not provided proof of any inconsistency on the part of the authorities in applying such a policy, either by showing that neighbours in a similar situation have been exempted from the obligation to demolish their house or by referring to any overriding higher interest, be it architectural and/or dictated by a concern to protect the national heritage.

The Court notes, further, that the applicant refused the compromise solution and the Prefect's proposal to continue enjoyment of the house subject to conditions. The Court shares the opinion of the Government Commissioner of the Conseil d'Etat that the proposal in question could have provided a solution reconciling the competing interests (see paragraph 27 above). It did not seem an unreasonable offer, having regard to the length of the occupancy and the applicant's ‘sentimental attachment’ to the house and the time sometimes required to implement an Act. The same solution has, moreover, been adopted when implementing recent coastal laws in other coastal countries (see, for example, Spain, paragraph 53 above).

Lastly, the Court reiterates that where a measure controlling the use of property is in issue, the lack of compensation is a factor to be taken into consideration in determining whether a fair balance has been achieved but is not of itself sufficient to constitute a violation of Article 1 of Protocol No. 1 (see Tomaso Galtieri, cited above, and Anonymos Touristiki Etairia Xenodocheia Kritis v. Greece, no. 35332/05, § 45, 21 February 2008). In the instant case, having regard to the rules governing public property, and considering that the applicant could not have been unaware of the principle that no compensation was payable, which was clearly stated in every decision issued since 1961 authorising his temporary occupancy of the public property (see paragraph 14 above), the lack of compensation cannot, in the Court's view, be regarded as a measure disproportionate to control of the use of the applicant's property, carried out in pursuit of the general interest.

Having regard to all the foregoing considerations, the Court considers that the applicant would not bear an individual and excessive burden in the event of demolition of his house with no compensation. Accordingly, the balance between the interests of the community and those of the applicant would not be upset.

Consequently, there has not been a violation of Article 1 of Protocol No. 1.