Building up property rights
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19 December 2013
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25 April 2014
The Human Rights Act (HRA) will have a wide-ranging impact on property issues. Corporate and individual property owners, as well as public authorities, will need to undertake a review of their approach to property matters in the context of the European Convention on Human Rights. The fragmentation of the public sector means that private sector interests are increasingly involved in the management of property and the delivery of services associated with public functions, whether under PFIs or otherwise. The trend for joint ventures and initiatives as well as outsourcing will significantly increase the range of private companies that might now be treated as public authorities under the terms of the HRA.
The convention is about rights and responsibilities. The ownership and management of property or the exercise of any rights or remedies in respect of property will often generate competing rights that have to be balanced. On the other hand, the need to observe the legitimate rights of others, both as a matter of compliance with the convention and as a proper object of sound corporate governance (thereby minimising the risk and expense of challenge), will create additional responsibilities.
The right to property and its enjoyment is expressly contained in Article 1 of Protocol 1 (as a qualified right), but is also affected by a number of other convention rights.
Article 1 states: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law, and by the general principles of international law."
In recognition of the legitimate interests of the state to control aspects such as planning and building laws and for the enforcement of securities, the article goes on to provide that: "The preceding provisions shall not, however, in any way impair the right of the state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest, or to secure the payment of taxes or other contributions or penalties."
But the overall picture is not as simple as this. The diverse way in which property rights are enjoyed and exercised may invoke: Article 2, the right to life; Article 6, the right to a fair and public hearing for the determination of civil rights; Article 8, the right to respect for private and family life, home and correspondence; Article 14, the right not to be discriminated against in the enjoyment of rights.
Each of these rights is qualified - requiring the courts to examine two issues. First, the extent to which existing legislation is consistent with the tests of the margin of appreciation and proportionality. For example, rent controls have been held to be lawful, as have Leasehold Reform Act acquisitions whereby the property can be acquired without the owner's consent and possibly at less than market value.
The condition or use of land (not necessarily adjacent) may give rise to noise, smell, pollutants or otherwise affect the ability of others to enjoy or occupy their property and may affect the quality of their private lives. This is as much about contaminated land or toxic emissions as bonfires and hedges.
Where there is a public authority with an enforcement or regulatory role, action may be taken against it for failure to safeguard the rights of the company or individual to live, work or operate. An example might be in the case of inaction over the clean-up of a site, Lopez Ostra v Spain .
Article 2, the right to life, will also be invoked where the actual or potential hazards are material. This potentially opens up a far broader obligation on public authorities to take positive action in the future when it would not have done so in the past. The extent of such an obligation is likely to be tempered by a note of realism but this will need to be carefully justified.
Land security issues
The case of Albany Homes Ltd v Massey  underlines the court's power to invoke convention points when private parties are involved. The court refused to grant an eviction order against a co-mortgagee, while the other was entitled to remain in possession. Levying of distress by a landlord without court process interferes with a tenant's civil right to enjoy his property and may fall foul of the right to a fair trial under Article 6.
The expropriation of property without fair compensation or on an arbitrary basis has been struck down for exceeding the margin of appreciation. The operation of any consultation and objection procedure associated with the acquisition would need to be reassessed in the context of equality of arms - did the party have sufficient time to consider and prepare its case?
While an individual may consent to arbitration rather than a court process, the provisions of the Housing Grants Construction and Regeneration Act 1996 provide for adjudication in all but limited circumstances. The provisions allow a claimant to invoke the process by short notice (seven days) with a decision within 28 days. This may breach one party's right to a fair opportunity to consider and respond to the claim.
Planning and licensing issues
This will affect those seeking consents and licences as well as those that might be affected by their grant. The process by which these are granted will need to reflect a fair procedure with proper opportunity being given to all parties.
In the case of Guerra v Italy  the court found that the authority failed to give local people essential information that would allow them to assess risks of continuing to live in an area where an event or accident may occur at a factory. The authority was in breach of Article 8. Coupled with Article 2, the right to life, the court also found that there was a positive obligation to inform about health matters. Each of these points potentially extends the scope of obligation and right to third parties beyond the normal consultation and notification period or the categories of people who may challenge decisions under particular legislative provision. Similar, and conflicting, issues might arise in connection with the licensing of property for entertainment purposes - where the right to benefit from one's property comes face to face with another's enjoyment.
There are a range of such matters that will affect the full use and enjoyment of property and which may be challenged in their own right or in terms of the process by which the regulatory powers were exercised. Examples include the impact of traffic control measures or the approval of public marches and demonstrations. In the latter instance, the authorities will need to balance the individual's right to assembly and expression (Articles 10 and 11) with that of enjoyment of the property affected by the demonstration or march.
Property management and housing issues
This includes the management of information held by public housing bodies and housing allocation and fitness of property both in terms of its physical condition and its appropriateness for a particular family unit (Article 8 and Article 2). Inappropriate allocation, repair or other policies may also give rise to discrimination claims under Article 14, the right not to be discriminated against in the enjoyment of rights. The use of CCTV cameras or other surveillance associated with anti-social behaviour will need to be reviewed both from the perspective of privacy and use of material in any process.
David Kilduff is the head of public sector and PFI at Walker Morris.